






































































































































































































































































































































































































































































































































































































































♦ ^ 























' • 4 


















COMBINED CONSTITUTIONS. 


HIED SHIES AID WISCONSIN. 


















AN EXPOSITION 


OF THE 



- V 

A. O. WRIGHT, 

> * 

Author of “An Exposition of the Constitutios* 
of the State of Wisconsin” and or 
“ American Constitutions.” 


* 


M That which contributes most to preserve the State Is to educate children with 
reference to the State; for the most useful laws, and most approved by every 
■tatesman, will be of no service If the citizens are not accustomed to and brought 
up In the principles of the Constitution. "—Aristotle's Politics, Book V. ch. 9. 


/!*> ptfifcv 1 






EIGHTY-NINTH EDITION. 


/ 


9 ** 7 - 


t-i i 


MADISON, WIS.: 

MIDLAND PUBLISHING COMPANY, 

























COPYRIGHT, 

DAVID ATWOOD 

1880 . 


COPYRIGHT, 

A. O. WRIGHT. 


COPYRIGH^T, 

A. O. WRIGHT. 
1S95. 


Tracy, Gibbs & Co. 

PRINTERS AND STEREOTYPERS. 
MADISON, WIS. 




PEEFACE. 


It is a hopeful sign for the future of our country, that the Consti¬ 
tution of the United States is studied so largely in our schools. In 
a popular government, the people ought to understand the principles 
on which the government is based, and the machinery of govern¬ 
ment by which these principles are to be carried out; that is, they 
ought to understand the Constitution of their nation. Some con¬ 
fused and imperfect knowledge of this will naturally be picked up 
by most citizens; and a few lawyers and others will gain a compre¬ 
hensive knowledge of the Constitution. J3ut a clear and accurate 
knowledge cannot be generally diffused, except by regular instruc¬ 
tion in the public schools. It is therefore a hopeful sign that thii 
instruction is now given in a large number of our schools. 

This book is the result of several years 1 experience in the class¬ 
room and in teacher^ 1 institutes. That experience has led to certain 
methods of presenting the subject matter in the text book. 

The order of the Constitution is followed. The Constitution of 
the United States has aD order of its own, and a good one, and it is 
an aid to the memory of the student to observe that order. 

Some topics are found scattered in different places, like the topic 
of impeachment. No arrangement of the Constitution can avoid 
this difficulty. Topics cross one another, and an arrangement 
which would bring some topics together would scatter others. The 
best plan for studying is to follow the order of the Constitution. 
But an opportunity for considering together all the parts of any 
topic is given by the analysis at the head of each section. 

It is recommended that the text of the Constitution be mem¬ 
orized, or at least all the more important portions of it. As an aid 
to topical recitation the heading of each paragraph is printed in 



4 


PREFACE. 


small capitals. The matter printed in smaller type may be omitted 
if there is lack of time, or with younger classes. 

The author’s aim has been to use plain language, and direct and 
simple forms of statement. 

The question of whether we are a Nation or a Confederacy, was 
settled by the framers of this Constitution. But it has also been 
setted by our civil war in a more effectual way than by any words 
written on paper. Any writer on the Constitution who dodges this 
most important issue is false to his country as well as to truth. On 
this and other questions about which there is a difference of opinion, 
the truth ought to be spoken without hesitation or equivocation. 
This the author has meant to do. 

This work has been thoroughly revised in MSS. by the law firm 
of Lewis, Lewis & Hale, of Madison, the senior member of which 
is United States District Attorney. Portions of it have also been 
submitted to officers who have to deal with the subjects treated of 
in those portions. The author’s acknowledgments are also due to 
many teachers and superintendents of schools for suggestions 
which have helped to improve this work. Should, however, any 
errors still be found in it, the author will be thankful for due notice 
of the same. 

Madison, Wis., August 23 , 1S80. 


Note. — There is an apparent, but not a real, discrepancy between 
the property valuations given on pages 34 and 292. The former is 
the true valuation, the latter the assessed valuation. In estimat¬ 
ing the average wealth of our citizens, the true valuation is given. 
In estimating the effect of a property qualification for the suffrage, 
the assessed valuation is used, which is the one on which the quali¬ 
fication to vote would be based. 



TABLE OF CONTENTS. 


Pages. 

PRELIMINARY MATTERS.. 3-8 

Preface. 3 

Table of Contents. 5 

“Thou, too, sail on, 0 Ship of State”. 7 

General Plan of the Constitution. 8 

ANALYSIS AND EXPOSITION OF THE CONSTI¬ 
TUTION . 9-297 

The Enacting Clause..T. 9-15 

Article First — The Legislative Department 16-143 

Section First — In Whom Vested. 17 

Section Second — The House of Representatives.. 21 

Section Third — The Senate. 86 

Section Fourty — Elections and Sessions. 44 

Section Fifth — Powers of Each House Separately 49 

Section Sixth — Powers of Members.. 60 

Section Seventh — The Process of Making Laws 65 

Section Eighth — Powers of Congress. 72 

Section Ninth — Prohibitions on Congress. 122 

Section Tenth — Prohibitions on the States. 133 

Article Second — The Executive Department 144-200 

Section First — Organization. 149 

Sections Second and Third — Powers and Duties 

of the President. 173 

Section Fourth — Removal upon Impeachment .. 198 

Article Third—The Judiciary Department.. 201-225 

Section First — Organization. 203 

Section Second — Jurisdiction of the Courts. 206 

Section Third — Treason. 219 






















6 


TABLE OF CONTENTS 


ANALYSIS AND EXPOSITION OF CONSTITUTION. Pages, 

Article Fourth — Relations op the States. .. 226-246 

Section First — State Records. 227 

Section Second — Relations of States to the in¬ 
habitants of other States. 228 

Section Third — New States and Territories. 233 

Section Fourth — Federal Protection of States... 244 

Article Fifth—Amendments. 247-251 

Article Sixth—Supremacy op this Constitu¬ 
tion . 252-256 

Article Seventh—Ratification op this Con¬ 
stitution . 257-259 

Amendments I-X — Bill op Rights. 260-279 

Article I — Freedom of Thought. 265 

Article II — The Right to Bear Arms. 266 

Article III — Quartering Soldiers. 267 

Article IV—Unreasonable Searches and Seiz¬ 
ures . 268 

Article V — Rights of Accused Persons before 

Trial. 269 

Article VI — Rights of Accused Persons on 

Trial. 272 

Article VII — Trial by Jury in Civil Cases 274 

Article VIII — Excessive Bail, Fines and Punish¬ 
ment. 276 

Article iX — Strict Construction of Personal 

Rights. 277 

Article X — Limited Powers of the U. S. Gov¬ 
ernment. 277 

Amendments XI and XII— Miscellaneous . 280-282 

Article XI — State Repudiation. 280 

Article XII — Election of President. 282 

Amendments XIII-XV — Results op the Civil 

War.-... 283-297 

Article XIII — Slavery Abolished. 285 

Article XIV — Miscellaneous Provisions Relating 

to the Civil War. 286 

Article XV — Negro Suffrage. 297 


























* Thou too — soil on, O, Ship of St at*! 

Sail on, O Union, strong and great! 

Humanity, ■with all its fears, 

With all its hopes of future years, 

Is hanging breathless on thy fate! 

We know what Master laid thy keel. 

What Workman wrought thy ribs of steel. 

Who made each mast, and sail, and rope. 

What anvils rang, what hammers beat, 

In what a forge and what a heat 
Were shaped the anchors of thy hope! 

* Fear not each sudden souna and shock, 

• 

’Tis of the wave and not the rock; 

1 Tis bid the flapping of the sail. 

And not a rent made by the gale! 

In spite of rock and tempest''s roar, 

In spite of false lights on the shore, 

Sail on, nor fear to breast the sea! 

Our hearts, our hopes, are all with thee, 

Our hearts, our hopes, our prayers, our tear i. 
Our faith triumphant o'er our fears, 

Are all with thee,—are all with thee!" 

— Longfellow 



THE CONSTITUTION OF THE UNITED STATES. 






- •• 


GENERAL PLAN OP THE CONSTITUTION. 




r 


THE ENACTING CLAUSE. 


< 


a 

© 

33 

B 


© 

o 

■a 

& 

Sfl 

•H 

u 

o 


e 


ART. I. Thk Legislative Department. 

ART. II. The Executive Department. 

ART. III. The Judiciary Department. 

4 

ART. IV. Relations op the States. 

ART. V. The Method op Amendment. 

«• 

ART. VI. The Supremacy op this OoKsimm®*, 
ART. VII. The Ratification of this Constisttti©®, 


f 


JS'd 
S'© < 

si ^ 
© 
s 
s 


5 


AMENDMENTS I-X. Bull op Rights. 
AMENDMENTS XI-XII. Miscellaneous. 
AMENDMENTS. XIII-XV. Results op the Ortik ^ 








THE CONSTITUTION OF THE UNITED STATES. 


THE ENACTING CLAUSE. 


"*A government of the people, by the people, and for the people." 

— Abbaham Linoowt. 

, 

We, the people of the United States, In order to form a more perfect union, 
establish justice, insure domestic tranquility, provide for the common 
defense, promote the general welfare, and secure the blessings of liberty 
to ourselves and our posterity, do ordain and establish this Constitution 
for the United States of America. 

I. The United States a republic. — Governments 

' ; 

are classified according to their form as Monarchies, 
Aristocracies and Democracies. 

1. A Monarchy is a government by one person. A 
monarchy may be either absolute or limited. In an 
absolute monarchy the sovereign is not restricted in his 
powers by any constitution; in a limited monarchy he 
is restricted in his power by some hind of constitution, 
written or unwritten. 

2. An Aristocracy is a government by a small part of 
the people, who form a privileged class. An aristocracy 
may be one of birth, or of wealth, or of both combined. 

3. A Democracy is a government by the people. 
A democracy may be either pure or representative. A 
pure democracy is one in which the voters themselves 
meet and make laws. In a representative democracy 
the voters elect representatives to make the laws. A 
representative democracy is usually called a republic. 





10 


ENACTING CLAUSE. 


It is plain that in so large a country as ours the voters 
cannot assemble to make laws, but that they must do 
that work by representatives. So that in a large coun¬ 
try a pure democracy is impossible. If the government 
is democratic it must be a representative democracy. 

The United States then is a republic. It is not the 
government of One or of the Few, but of the Many. 
And as it is representative in form, it is a Republic. 

A republican form of government is guaranteed to 
every State in the Union, by this Constitution (Art. 
IV, Sec. 4). Whatever else this means, it means at 
least that no State shall ever become a monarchy or an 
aristocracy. 

II. The people the source oe power. — A repub¬ 
lic is a government by the people through representa¬ 
tives. The representatives govern, but they do not 
govern by any inherent right, but only as representa¬ 
tives. The people are the source of power. In the 
words of President Lincoln, this is u a government of 
the people, by the people, and for the people.” 

The members of the House of Representatives are 
the most direct representatives of the people, as their 
name indicates. But every officer of the United States 
or of any State, is directly or indirectly chosen by the 
people, and is responsible to the people for the faithful 
performance of his duties. 

The Enacting Clause recognizes this fact, that the 
people are the source of power, and says expressly u We, 
the people of the United States, do ordain and establish 
this Constitution.” 

III. A popular government best. — A demo¬ 
cratic government is best, in any country in which the 
people are fitted for it. Rude and barbarous nations, 
or nations intelligent, but debased morally, are not 


ENACTING CLAUSE. 


11 


fitted to govern themselves. Hence monarchies or aris¬ 
tocracies are best for such nations. But where the peo¬ 
ple generally have a fair degree of intelligence and of 
moral character, a republican government is best. 

The people will doubtless make mistakes and do 
wrongs, but so will any government, and the mistakes 
and errors of a republic are certainly no worse than 
those of a monarchy or an aristocracy. No one claims 
that republics will be perfect. Nothing human is perfect. 

But we can reasonably claim that those oppressions 
and corruptions which are easy to begin and to keep up 
under other forms of government, are almost impossi¬ 
ble under a republic. In an absolute monarchy the 
interests of the king and his favorites are attended to, 
without much regard to the interests of the rest of 
the people. In an aristocracy the interests of the 
ruling class are the only interests thought of. But 
in a republic, the interests of one class are balanced by 
the interests of the other classes. All are represented; 
and the interests of all are secured as well as is possi¬ 
ble in human affairs. The public discussions, which 
are necessary in a popular government, prevent secret 
forms of corruption, and help to secure justice and 
purity of administration. 

In short, when the people of any country are fit to 
take care of themselves, they can do it better than any 
kine: or nobles can do it for them. 

IV. Objects of this constitution. — The objects 
of this constitution, as here stated, are six: 

1. To form a more perfect union. 

2. To establish justice. 

3. To secure domestic tranquility. 

4. To provide for the common defense. 

5. To promote the general welfare. 

6. To secure the blessings of liberty to the people of the United 
Btates and their posterity. 


12 


ENACTING CLAUSE. 


These all refer to the defects in the government of 
the United States at that time, under the Articles of 
Confederation. 

That union was (1.) a very imperfect one; (2.) it did 
not establish justice; (3.) it did not ensure domestic tran¬ 
quility; (4.) it did not provide efficiently for the com¬ 
mon defense; (5.) it could do but little to promote the 
general welfare; (6.) and therefore it was not strong 
enough to secure the blessings of liberty to this country 
for any great length of time. 

The defects of the Confederation were many; but they 
may all be summed up in one phrase: The real power 
was vested in the several states, and Congress had no 
power to enforce its laws. Congress could resolve , but 
it could not execute; it could ash the states to pay taxes, 
to furnish troops, to conform to treaties, to do justice* 
to each other’s citizens, but it could not command them, 

Y. The constitution compared with the artl 

CLES OF CONFEDERATION. 

1. This Constitution forms a more perfect union than that undei 
the Articles of Confederation. It is still not a perfect union; for it 
was not wished to destroy the States and make one centralized gov¬ 
ernment, nor would that have been wise. But the loose and ineffi¬ 
cient Confederation was exchanged for a Federation in which a 
strong national government was set up over States still retaining 
much power. 

2. Justice is established by means of a national Judiciary, which 
protects foreigners and the citizens of other states against unjust 
decisions of any State courts. [See Article III.] 

3. Domestic tranquility is ensured by the provision that the 
United States shall protect each State against domestic violence. 
[Article IV, Sec. 4.] Shays’s rebellion in Massachusetts in 1786, 
had called general attention to the need of a strong central govern¬ 
ment to assist the states against such insurrections. 1 

1 Washington wrote at that time to a member of Congress: “You talk, 
my good s.r, of employing influences to appease the present troubles in Mas¬ 
sachusetts. Influence is not government . Let us have a government by 
which our lives, liberties and properties will be secured, or let u* know the 
worst at once.” 



ENACTING CLAUSE. 


13 


4 . The common defense could only be provided for by a govern¬ 
ment capable of raising and supporting armies and navies. Even 
in the enthusiasm of the Revolutionary War, the central govern¬ 
ment showed how weak it was, to raise armies or collect taxes, and 
thinking men saw that in another war it might be still worse. 

5. To promote the general welfare is an elastic expression, capa¬ 
ble of being lengthened or shortened according to our own ideas of 
what is for the general welfare. This clause has covered things as 
different as the purchase of Louisiana, an expedition to the North 
Pole, a system of weather reports, and the establishment of the 
Smithsonian Institution. Under this clause the powers of the gen¬ 
eral government may yet be greatly extended. 

6. To secure the blessings of liberty, law is needed as well as 
liberty. Liberty alone soon degenerates into license, and that into 
anarchy, which is worse than despotism. 

The American idea of liberty is of liberty protected by law. This 
principle is carried out in our own natioriat government. The 
power of the general government is given to it in order to secure 
the blessings of liberty to the people; not to destroy that liberty, 
but to protect it. Under this government we have flourished during 
this first century as few nations of the world have ever done. We 
have also survived the shock of a great Civil War, which settled 
the question whether this Constitution should be accepted for all it 
means. We may therefore reasonably hope that our liberty, pro¬ 
tected by the strength of our national government, will be handed 
down to a remote posterity. 

VI. The United States a nation, not a con¬ 
federacy. 

The enacting clause reads, “ We, the people of the United States, 
do ordain and establish this Constitution." It does not read, “We 
the States do contract and enter into a treaty with each other.” 
The United States is therefore one nation , and not a confederacy of 
independent allied states. The source of power is not in the several 
states, but in the people of . the United States. This Enacting 
Clause was not worded as it is, hastily or inconsiderately. There 
was a great difference of opinion in the United States, both before 
and after this Constitution was adopted, upon this very point. The 
Thirteen Colonies, though all alike dependent upon England, were 
independent of one another. They had formed several alliances 
among themselves for defense, and when the struggle with the 


14 


ENACTING CLAUSE. 


mother country began they were drawn together by the necessities 
of the war. Many thoughtful men advocated a much closer union 
even in 1775; but the Articles of Confederation adopted in 1781, 
were as much as the states were then willing to concede. And it 
was not until experience had shown the great evils which come from 
the jealousies and rivalries of independent states, held together 
only by a weak confederate government, that the people became 
willing to establish a real national government. And even then 
there was a large minority opposed to the Constitution, because it 
took away the independence of the states. 

After the Constitution was adopted the contest was carried on by 
the two parties which were immediately organized, the Federalist 
and the Anti-Federalist. As the Constitution by its practical work¬ 
ings showed its value, it came to be accepted generally by the people 
as the bond of our Union. The Supreme Court has decided that 
these words, “ We, the people of the United States,” etc., declare 
us to be one nation. And at last our great Civil War has settled 
the question practically. The seceding States claimed not only the 
right of revolution, which every oppressed people has, but the 
right of secession, claiming that we were not one nation but a con¬ 
federacy of independent allied States, and that any State had a 
right to dissolve the alliance at pleasure. The result of the war 
decided that the American people are one nation , and mean to 
remain so. 

VII. Local self-government and national unity. 

The United States differs from many republics in being composed 
of several States. It is a Federal Republic in which some powers 
are given to the state governments and some to the United States 
government. Just where to draw the line between these two sets 
of governmental functions, is a difficult question both in theory and 
in practice. Ever since the Constitution was adopted, there have 
always been two political parties, the one inclined to limit the pow¬ 
ers of the United States government and increase the powers of the 
states, and the other party inclined to increase the powers of the 
United States government and limit those of the states. But, on 
the whole, the general government has been slowly gaming power 
at the expense of the state governments. This growth in power, 
however, has not been so great as to change the essential relations 
of the two pets of governments. These principles may be stated 
thus* 


ENACTING CLAUSE. 


15 


1. The United States government has all the power needed for 

national independence. 

2. The state governments have all the power needed for local self- 
government. 

Every person in the United States (except in the District of Co¬ 
lumbia and unorganized territories, in forts, arsenals, and dock¬ 
yards, or on the high seas) is thus subject to two jurisdictions. Ha 
is subject to two sets of laws, which are made and administered by 
two different sets of officers, and he pays taxes and owes allegiance 
to both governments, that of the state or territory in which he is, 
and that of the United States. For nearly all the ordinary rela¬ 
tions of business and society, he looks to his state law and state 
government. He marries and is divorced, educates his children, 
transmits his property, buys and sells, and is protected from thieves 
and murderers, under the laws of the state or territory where he is 
at the time, But he is protected from foreign foes by United States 
troops and ships; he uses United States money; feends and receives 
letters through the United States postoffices; and, if he is a for¬ 
eigner, he can only be naturalized according to United States law. 
It is plain that in ordinary business and society the state govern¬ 
ment touches the citizen at far more points than the general gov¬ 
ernment does. 

But the principle of local self-government is carried out still fur¬ 
ther. The states leave the affairs of each township, village, city or 
county to be regulated by the people thereof, under the general 
provisions of state laws which limit and define the powers of these 
subdivisions of a state. There is nothing in the United States Con¬ 
stitution which requires this, and not very much in the constitutions 
of the several states. But it is a part of the unwritten constitution,- 
the political habits of the American people. Thus the federal 
character of our republic harmonizes with the American habit ot 
local seli-govemment, and is thus sustained by a power far more 
effectual than any written constitution. 


16 


THE LEGISLATIVE DEPARTMENT. 


[ 1 * 


ARTICLE I. 


THE LEGISLATIVE DEPARTMENT. 

“ There the common sense of most shall hold a fretful realm In awe. 
And the kindly earth shall slumber, laptin universal law.” 

— Tekktsow. 


I. G-eneral plan op this article. — This Article 
is put first, because it is the most important and the 
longest Article in the Constitution. A republican gov¬ 
ernment is a government of laws, not a government of 
men, And therefore in such a government the most 
important part is to make the laws, which is the duty 
of the Legislative Department of the government. Laws 
must be made by the Legislative Department before 
they can be executed by the Executive Department, or 
before cases can arise under them to be brought before 
the Judicial Department. 

This Article is divided into ten sections as follows: 

Sec. 1, states in whom the Legislative power is vested. 

Sec. 2, treats of the House of Representatives. 

Sec. 3, treats of the Senate. 

Sec. 4, treats of the elections and sessions of Congress. 

Sec. 5, treats of the powers of each House separately. 

Sec. 6, treats of the privileges of members. 

Sec. 7, treats of the process of making laws. 

Sec. 8, treats of the powers of Congress. 

Sec. 9, treats of the prohibitions on Congress. 

Sec. 10, treats of the prohibitions on the States. 



1:1.] IN WHOM LEGISLATIVE POWER IS VESTED. IT 


SECTION 1. 

IN WHOM THE LEGISLATIVE POWER IS VESTED. 

All legislative powers herein granted shall be vested in a Congress of tho 
United States, which shall consist of a Senate and House of Representa¬ 
tives. 

I. Departments of government. — The government 
of the?* United States is divided into three departments, 
Legislative, Executive and Judicial. The legislative 
department is that part of the government which makes 
the laws; the executive is that part which carries out 
and enforces the laws; and the judicial is that part 
which applies and interprets the laws. These depart¬ 
ments are not kept quite distinct, but, as we shall see, 
the legislative department exercises some judicial func¬ 
tions, and the executive exercises some legislative func¬ 
tions. But these are exceptions to the general rule. 
Of these three departments the legislative is the most 
important and has the most power. It therefore needs 
to be guarded with the greatest care, to prevent its 
usurping power. For this reason it is divided into two 
Houses, that each may be a check upon the other; for 
this reason, the President has a veto; and for this rea¬ 
son, the members of the lower house are reflected fre¬ 
quently, to' make them feel their responsibility to the 
people. By these expedients, the legislative department 
is restrained from usurping power that does not belong 
to it. 

II. Why there are three departments. 

In this division of the powers and duties of government, the 
framers of our Constitution followed the form to which the people 
of the United S;ates had always been accustomed. The govern¬ 
ment of England was divided into these three departments. The 
legislative power was vested in the Parliament, consisting of & 
B 



18 


THE LEGISLATIVE DEPARTMENT. 


[I: l. 

House of Lords and a House of Commons; the executive power wa* 
vested in the King and his Cabinet ministers; and the judicial 
power was vested in the judges. This division of powers was not 
exact and logical, but each branch of government exercised some 
powers that logically would belong to the others, because it had 
been found in practice that it worked well so. The King had a 
legislative power in the veto, as the President also has; the House 
of Commons had a judicial pow, j r in presenting impeachments, and 
the House of Lords in trying them, just as the House of Repre¬ 
sentatives and Senate now have. 

The colonies had naturally adopted forms of government not dif¬ 
fering much from that of England, and had found them to work 
well. And when a national government for the United States was 
formed, the same division of powers was adopted without any seri¬ 
ous question, because the people were accustomed to it, and because 
experience had shown it to be the best way to divide the powers ol 
a government. 

As long as the United States was only a confederation of inde¬ 
pendent states, a congress of delegates was enough without an 
executive or a judiciary. But as soon as the United States was 
made a nation, the three departments of government were made 
necessary. 

III. The colonial governments. — Tlie colonies 
of Great Britain, which afterwards became the United 
States of America, had three different forms of gov¬ 
ernment. 

1. The Royal Provinces .—In these the governor and judges 
were appointed by the King. The upper house of the legislature 
was generally appointed by the governor, and only the lower . 
house of the legislature was elected by the people. Both the gov¬ 
ernor and the king had a veto upon the laws. So that if the repre¬ 
sentatives of the people passed a law obnoxious to the royal party, it 
could be negatived by the upper house or vetoed by the governor 
or annulled at any time by the king. But no tax could be levied 
without the consent of the legislature. Virginia (after 1624) is the 
best example of a royal province. 

2. The Proprietary Colonies. — In these the supreme power was 
vested in the proprietor, who was either a man or a company. The 
proprietor, if living in the colony, virtually ruled as king, or if in 
England, appointed a governor and other officers. In the case of 


1 : 1 .] 


CONGRESS. 


19 


New York (under both Dutch and English till 1683), the people 
had no voice in the government or in taxation. But in the case of 
Pennsylvania, the people elected both houses of the legislature, and 
the proprietors appointed the governor. 

3. The Chartered Colonies. — In these the people elected their 
own governor and other officers as well as the legislature. Con¬ 
necticut is the best example of a chartered colony. 

In general terms with some exceptions we may say, that the New 
England colonies were chartered, the Middle colonies proprietary, 
and the Southern colonies were royal provinces. 

All these governments contained the germs of popular liberty, 
excepting only the early proprietary government of New York. In 
all the colonies the people wished to govern themselves, and only 
submitted to the arbitrary restriction of the king, and of some of 
the proprietors, because they were compelled to. As soon as they 
rebelled against the English government in 1775, they at once ex¬ 
pelled their royal or proprietary governors and elected governors of 
their own. They preferred the type of government of the chartered 
colonies, and adopted it as soon as they could. The State govern¬ 
ments are now substantially of the form of government in the 
chartered colonies. 

And when the people came to set up a true national government 
for the United States, they adopted the same general form. The 
changes that have been made since the adoption of this Constitu¬ 
tion in the forms of the State and National governments, have been 
in the direction of popular representation and personal liberty. 

IY. Congress. —The name Congress, was the name 
given to the delegates from the colonies under the Arti¬ 
cles of Confederation. This name was retained for the 
legislative body of the United States under the Consti¬ 
tution. Under the Confederation, Congress consisted 
of but one House. But by the Constitution, Congress 
was made to consist of two Houses, for several reasons, 
[l.j to hinder foolish or unscrupulous legislation, [2.] to 
represent the States in one House and the people in the 
other, [3.] and because the English Parliament and the 
colonial legislatures had two Houses, so that it was one 
of the political ideas of the people of the United States 
that a legislature should have two Houses. 


20 THE LEGISLATIVE DEPARTMENT. [1:1 

Each Congress exists two years, beginning on the 
Fourth of March at noon, every odd numbered year. 
At that time the term of all the Representatives and of 
one-third of the Senators expires. And at that time 
every other odd year, the term of the President also ex¬ 
pires. It is usual to refer to the successive Congresses 
by their number. Thus the Congress which existed 
from 1789 to 1791, is called the First Congress, and the 
Congress which existed from 1877 to 1879, is called the 
Forty-fifth Congress. 


5: X.} 


THE HOUSE OF REPKi^EH'iAll VE8. 



SECTION 2. 

THE HOUSE OF REPRESENTATIVES. 




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55 

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1. Representatives — Chosen by the people. 


I. 2,1 


2. Qualifications qf 
Voters . 


(a.) The same as for voters 

lor State legislature. I, 2* 1 
(b.) But are expected to in¬ 
clude all adult male 
citizens (except fel¬ 
ons'and traitors)_ Am. XIV 

(c.) And cannot exclude 

negroes, as such.... Am. XV 


a. Term qf office — two years. 


I. 8,1 


4. Qualiflcatlon of 
Representatives.. 


5. Apportionment of 
Representatives.. 


(a.) Ago —25 years. I, 4, 2 

(b.) U. S. citizenship — 7 

years. I, 2, ® 

(c.) Residence—in State 

from which chosen.. I, 2,1 
(d.) Must not hold U. S. 

* oilices. I, 6,2 

(e.) Must not be unrepent¬ 
ant rebels. Am. XIV 

. (f.) Must take oath of office VI, 1 

(a.) B a 8 i 8 of apportion¬ 
ment — the popula¬ 
tion — except wild 

Indians . Am. XIV 

(b.) Census — every ten 

years . 1 , 2,8 

'(a.) 1. Not 


(c.) 


Limita¬ 
tions on-f 
numbers 


more than 
one for ev¬ 
ery 30,000. 
(b.) 2. One 
to each 
.State. 


8. Elections — time — 
place and man¬ 
ner .... . 


(a.) Fixed by State legisla¬ 
tures . 

(b.) Or by Congress. 


I, 8,1 
I, 8,1 


I, 4,1 
1, 4, 1 


co 

P* 


£ 


O 

Cm 


7. Vacancies — filled by special elections. I, 8, 4 

8. Privileges of Members. (See Section 6.) 

1. To choose officers. I, 2, 5 

2. To impeach. I, 2, 8 

3. To originate bills for 

raising revenues .... 1,7,1 

4. To elect a President — 

when the electors fail 
to elect one. Am. XII 

10. Separate Powers. (See Section 5.) 

11. Legislative Powers. (See Sections 7, 8 and 9, also 

Amendments I to X and XIII to XV.) 


9. Sole Powers . - 

< 


v. 


V. 
































22 


THE HOUSE OF REPRESENTATIVES. [Is 2, 1. 


CLAUSE 1. 

ORGANIZATION. 

Th« House of Representatives shall be composed of members chosen every 
second year by the people of the several States, ana the electors In each 
State shall have the qualifications requisite for electors of the most nu 
merous branch of the State legislature. 

I. Representatives are chosen by the people. — 
In a free country the people govern. Even in a limited 
monarchy the representatives of the people have some 
voice in the government. In a republic all officers, in 
one sense, are representatives of the people, for they are 
chosen directly or indirectly by the people, and they are 
responsible to the people. 

But in a special sense the members of the lower house 
of Congress are called Representatives, because they 
specially represent the people. Each Representative is 
chosen to represent the people of his State or district. 
As the people cannot all go to the Capitol and help to 
make laws, certain persons are chosen to do the work 
of legislation for them. It is supposed that each Rep¬ 
resentative will vote and help to make laws as the peo¬ 
ple of his State or district wish him to do, and that if 
questions come up on which he has received no instruc¬ 
tion, he will act according to his best judgment for the 
interests of those who chose him as their Representa¬ 
tive. 

If each Representative thus represents his State or 
district, then all together will represent the people of 
the United States. If the people of a district are di¬ 
vided on certain questions, then their Representative 
will usually represent the majority of the people of his 
district. Indeed, he will be chosen over his competitors 
for the very reason that he does represent the majority 


I: 2, l.j 


ORGANIZATION. 


2 


of his district on the leading questions of the day. And 
a majority of the House of Representatives will thus be 
almost certain to represent a majority of the nation on 
all the leading questions of the day. 

II. They are chosen for a short term of 
office. — Representatives are chosen for two years, so 
that they may be responsible to the people. If a Repre¬ 
sentative does not truly represent in Congress the peo¬ 
ple of his district, they need not have him as their Rep- 
resentive longer than two years. Every two years the 
people have an opportunity of choosing Representatives 
anew. If a Representative does truly represent his dis¬ 
trict, he will probably be re-elected. It is not meant 
that a new person should be chosen every two years; 
but only that the people should have an opportunity of 

endorsing or of rejecting their Representative every 

* 

two years. 

III. Congressional districts. —The Constitution 
Bays that Representatives shall be chosen by the people 
of the several States. Anddt also states how they shall 
be apportioned among the several States. [Clause 3.] 
But the Constitution leaves to each State to decide how 
its Representatives are to be divided among its people. 
The Constitution treats each State as a political unit. 
Each State is to have so many Representatives according 
to its population. But how these Representatives are 
to be apportioned within each State, is left to each State 
legislature to determine. 

As a rule, the state legislatures have divided the States 
into as many Congressional districts as each State has 
Representatives; and the people of each district have 
elected one Representative. 

But in some cases, one or more extra Representatives 
have been elected “ at large,” that is by the people of 


24 


THE HOUSE OF REPRESENTATIVES. [I: 2, 1. 


the whole State. Thus after a new apportionment, in 
which the State of Pennsylvania gained four Repre¬ 
sentatives, the legislature could not agree on the redis¬ 
tricting of the State. The result of it was that the old 
districts were left as they had been, and the four extra 
Representatives were elected 11 at large, 11 or by the peo¬ 
ple of the whole State. 

If a State chose, it could elect all its Representatives 
on one ticket, and have no districts. But that is so con¬ 
trary to the political habits of our people that it is not 
likely to be done. 

IV. Qualifications of voters left to the 
states. — When the Constitution says that Representa¬ 
tives shall be chosen by the people of the several States, 
it means by the voters , as representing the people. A* 
a fact, not more than one-fourth of the people are actual 
voters. Women and children are not voters in anj' 
State, and some men in all the States are disqualified 
for various reasons. The voters are supposed to repre¬ 
sent the people. 

When the Constitution was adopted, the States re¬ 
quired different qualifications of voters, as they still do. 
The United States establishes no uniform qualification 
for voters, but leaves that matter to the several States. 
Each State, then, in fixing the qualifications required 
of those who vote for the lower house of its legislature, 
also gives the same persons the right to vote for mem¬ 
bers of the lower house of Congress. 

V. Two RESTRICTIONS ON STATE POWER IN DETER¬ 
MINING who shall vote. — Two restrictions have since 
been added. By the Fifteenth Amendment negroes can¬ 
not be forbidden to vote because they are negroes. Any 
reason which would disqualify a white man will also 
disqualify a negro, but no other reason wiH. This pro 


Is 2, 1.] 


ORGANIZATION. 


25 


vision affects elections for Representatives, as it does all 
other elections, State and National. 

And by the Fourteenth Amendment it is provided, 
that where a State excludes any considerable part of its 
inhabitants who are male citizens of the United States, 
over twenty-one years old, for any cause except crime 
or rebellion, that the number of Representatives to 
which that State is entitled shall be proportionately 
diminished. This was intended to prevent States from 
disfranchising negroes; but it would also work against 
a property or educational qualification. It virtually 
establishes manhood suffrage throughout the United 
States. No case has ever arisen'under this amendment 
by which the representation of a State has been dimin¬ 
ished. 

VI. Disputed questions. 

1. Ought a Representative to Vote as the Majority of his Con¬ 
stituents Wish ? There are three questions involved, (a) the legal 
power, ( b ) the inducements to the Representative, (c) the moral 
right. 

(a) The legal power is plain. Once elected and sworn in, no legal 
power can coerce a Representative to vote, except as he himself 
chooses. He is absolute master of his vote. 

(&) 13ut powerful inducements are put before him to determine 
his vote. There is first his past record, with which he wishes to be 
consistent if possible; and his pledges to his constituents expressed 
or implied in his acceptance of a nomination by a certain party. 
There is, second, his present relations to personal and political 
friends at home, and in Congress, whose friendship he wishes to 
retain, and whose help he expects to ask for in projects of his own. 
This is made very powerful by the institution of the caucus. And 
last, but not least, are his hopes for his political future, which will 
depend largely upon his votes in Congress. These inducements 
generally cause Representatives to follow either their party leaders 
or the expressed wish of their constituents. 

(c' But the moral question is a harder one to answer. Usually it 
is the obvious duty of a Representative to vote as the majority in 


26 


THE HOUSE OF REPRESENTATIVES. LI: 2, 2. 

• 

his district wish him to vote. But there may come occasions when 
he ought to go contrary to his constituents. He ought not to vote 
for injustice or dishonesty because his constituents demand it. Nor 
ought he to vote for anything contrary to the real interests of the 
nation out of a narrow and selfish sectional policy. He is legislat¬ 
ing not merely for his district, but also for the nation, and above all 
for truth and justice. 

2. Should Representatives he changed Frequently ? It is very 
poor policy for the people of any district to change their Represent¬ 
atives often or for frivolous reasons. The longer a Representative 
is in Congress, the more influence he gains there. It is almost im¬ 
possible for a Representative in the first term of his office to do 
more than vote. The real work of Congress is done in the commit¬ 
tees, and members win their places on important committees by 
long service more than by ability. The longer a district sends a 
man of ability and integrity to Congress, the more influence he, 
and therefore his district, will acquire over the business transacted 
in the House. 

It is one of the sophistical maxims of our politics that “ rotation 
in office ” is a good thing. It is a good thing for the politicians, 
because it gives more of them a chance to get positions, but it if 
not a good thing for the people, who are worse served thereby. 
Rotation of Representatives is only a good thing where a Represent¬ 
ative is corrupt or incompetent, or fails to represent his district o» 
the great questions of the day. 

CLAUSE 2. 

QUALIFICATIONS OF REPRESENTATIVES. 

No perpon shall be a Representative who shall not have attained the a/j* of 
twenty-five years, and been seven years a citizen of the United State*, 
and who shall not, when elected, be an inhabitant of that State in which 
he shall be chosen. 

I. Age of a representative. — A Representative 
in Congress must be at least twenty-five years old. The 
object of requiring this is to secure a little more matu¬ 
rity of character and experience of political life than is 
required of a voter. Most of our Representatives are 


I: 2, 2.] QUALIFICATIONS OF REPRESENTATIVES. 27 


much older than twenty-five. In the British Parlia¬ 
ment a member of either house must be twenty-one 
years old. The same age is required in most of the 
State legislatures. 

II. Citizenship op a representatiye. — A Repre¬ 
sentative in Congress must have been at least seven 
years a citizen of the United States. A natural born 
citizen will of course have been twenty-five years a citi¬ 
zen, when he reaches the age of twenty-five. But a 
naturalized citizen must have been naturalized at least 
seven years, whatever his age, before he can be a Repre¬ 
sentative in Congress. 

As the least time under our naturalization laws in 
which a foreigner can become a citizen is five years, it 
follows that the least time in which a foreigner, after 
reaching this country, can become a Representative, is 
five plus seven, or twelve years. The reason for requir¬ 
ing so long a citizenship is in order that the naturalized 
citizen may become familiar with our institutions, and 
outgrow at least in part the political ideas he may have 
brought from another land. 

III. Residence of representatives. — A Repre¬ 
sentative must be, when he is elected, a resident of the 
State from which lie is chosen. Living in a place con¬ 
stitutes residence in it. In cases of doubtful residence, 
a person’s true residence must be decided by his inten¬ 
tion as shown by his words and actions. A person may 
have several places in which he lives; but only one of 
them can be his legal residence, for purposes of taxation, 
voting and holding office. 

It is not necessary that a Representative should have 
resided any time in the State from which he is 
elected. But he must be a resident of that State when 
elected. 


23 


THE HOUSE OF REPRESENTATIVES. [I: 2, 2. 


But it is not required that a Representative shall be 
a resident of the district from which he is elected. 
Although the usual practice is to elect from each district 
a resident of that district, there have been several cases 
of Representatives being elected who were not residents 
of their districts. 

The reason for requiring residence in the State, is that 
the Representative may be familiar with the local inter¬ 
ests and needs of his State. The reason for not restrict¬ 
ing the residence to the district is because the Constitu¬ 
tion leaves the whole question of the distribution of 
Representatives inside a State, to the State itself. In 
Great Britain no qualification is required in regard to 
residence, and every House of Commons contains many 
members who do not reside in the county or borough 
for which they are elected. The same is the case in 
France. 

IV. D ^qualifications. — The Constitution also pre¬ 
scribes the following disqualifications: 

1. No person holding any office under the United 
States can be a Member of Congress during his continu¬ 
ance in office. [I. 6, 2.] 

2. No person who violates an oath to support the 
Constitution by engaging in rebellion against the 
United States, can be a Member of Congress, unless this 
disability is removed. [Amendment XIV, 3.J 

V. Some disputed questions. — The following 
questions have been raised at various times: 

1. Can a State provide Additional qualifications for its Repre¬ 
sentatives? No; for that would be giving a single State the right 
to amend the United States Constitution. A State can no more 
add other qualifications t.ian it can require less. This has been de¬ 
cided by the House of Representatives, under the powers given it 


I: 2, 2.] QUALIFICATIONS OF REPRESENTATIVES. 29 


by Section 5. Similar cases have been decided the same way by the 
Senate. 1 

2. Can a person be elected ivho is not twenty-five years of age t 
Yes; if he becomes twenty five years of age before he takes hi* 
Beat. And the House even went so far in one case as to admit a 
member who was not twenty-five when the first session of the 
House began. He had to wait a few weeks until he was of the re¬ 
quired age, and then he took his seat. 

3. Can a person be elected a Representative who has not been a 
citizen seven years ? Yes; if he shall have been seven years a citi¬ 
zen before taking his seat. 

This is on the same principle as the last case. 

4. Can a person be elected a Representative who is not a votor P 
The letter of the Constitution does not prescribe any such quali¬ 
fication. 

No such case has yet arisen. But should a woman ever be elected 
to Congress, or a person who had not a sufficient amount of prop¬ 
erty in a State where a property qualification is required of voters, 
we may suppose that the House would decide that he or she was 
not qualified. But it is not probable that any person not a voter, 
will ever be chosen a Representative. 

5 . If a Representative should remove from his State after being 
elected would he lose his seat ? No; for the Constitution only speci- 
ne% ihat he shall be a resident of the State', when elected. 

6. Can an Ambassador be chosen to Congress , while absent from 
the United States ? Yes; for he has not lost his residence in the 
State from which he was appo nted.* 

7. If an ineligible person receives a majority of votes , does his 
competitor* take his place? No; in that case no one is elected. 
There is a vacancy to be filled by a special election. If A. and B. 
are candidates and A. receives a majority of the votes, but is not 
eligible for the office, he cannot take his seat. But B. was not 
elected, and has no claim upon the place, even if A. is not eligible. 

i Some recent text books on the Constltntion say that this question is still 
in doubt. Congress has repeatedly decided that the Constitution prescribe* 
the only qualifications of members, and that no state has a right to require 
additional qualifications. And this was endorsed by the Supreme Court. 
Bailey's Case (Cl. and Hall, 411). 

a a public minister residing at a foreign court does not lose his character 
as an inhabitant oi his State. Bailey's Case (Cl. and ilall, 411). 



I 


30 THE HOUSE OF REPRESENTATIVES. [1:2, 3. 

"V 


CLAUSE 3. 

APPORTIONMENT OF REPRESENTATIVES. 

Representatives and direct taxes shall be apportioned among the several 
States which may be included within this Union, according to their 
respective numbers, [which shall be determined by adding to the whole 
number of free persons, including those bound to service for a term it 
years, and] excluding Indians not taxed, [three-fifths of all other par¬ 
sons]. The actual enumeration shall be made within three years after 
the first meeting of the Congress of the United States, and within every 
subsequent term of ten years, in such manner as they shall by law 
direct. The number of Representatives shall not exceed one for every 
thirty thousand, but each State shall have at least one Representative; 
[and until such enumeration shall be made, the State of New Hamp¬ 
shire. shall be entitled to choose three, Massachusetts eight, Rhode 
Island and Providence Plantations one, Connecticut five, New York six, 
New Jersey four, Pennsylvania eight, Delaware one, Maryland six, 
Virginia ten, North Carolina live, South Carolina live, and Georgia 
three.] 1 

I. The article as amended by the thirteenth 
and fourteenth amendments. — If we sliould reject 
all obsolete matter, and should change to correspond 
with Amendments XIII and XIV, this clause would 
read as follows: 

“Representatives shall be apportioned among the several State? 
according to their respective numbers, counting the whole number 
of persons in each State, excluding Indians not taxed. But when 
the right to vote at any election for the choice of Representatives in 
Congress is denied to any of the male inhabitants of such State 
being twenty-one years of age, and citizens of the United States, 
or in any way abridged, except for participation in rebellion or 
other crimes, the basis of representation shall be reduced in the 
proportion which the number of such male citizens shall bear to the 
whole number of male citizens, twenty-one years of age, in such 
State. The actual enumeration shall be made every ten years, in 
such manner as Congress shall by law direct. The number of Rep¬ 
resentatives shall not exceed one for every thirty thousand, but each 
State shall have at least one Representative.” 


1 The parts of this Clause in brackets are now obsolete. 



* : -> 3.J APPORTIONMENT OF REPRESENTATIVES. 31 


II. States represented according to popula¬ 
tion. — As fe? Representatives are to represent the 
people, it is only fair that the States should have Rep¬ 
resentatives according to the people who are repre¬ 
sented. 

The theory of our laws is that every man over twen¬ 
ty-one represents a family, and that the exceptions 
where men have no families, or families contain no 
men, are not enough to require a change of the rule. 
And therefore the theory is that the men over twenty- 
one will sufficiently represent the women and children. 

III. Uncivilized Indians and negro slaves.— 
But when the Constitution was adopted, two classes 
were entirely disfranchised, those Indians who had not 
become civilized, and negro slaves. It was agreed 
by all that Indians who were civilized should be 
counted as a part of the representative population, as 
they were taxed and subject to the laws of the land. It 
was also agreed that uncivilized Indians should not be 
counted, as they neither were taxed nor obeyed the laws. 

. But the negro slaves made a more difficult problem. 
They were human beings, and yet they were property. 
The'slave States naturally wished to count their slaves 
as a part of their representative population, while tha 
free States protested against »t. A compromise was 
finally made upon the basis of counting only three- 
fifths of the slaves in the basis of representation. 

It would have been shorter and plainer to have said, 
M According to their respective numbers, excluding In¬ 
dians not taxed, and including only three-fifths of the 
plaves.” But the authors of the Constitution were 
ashamed to confess the existence of slavery in a free 
country, and hoped it would soon die out. They 
therefore avoided the use of the words “slave” or 


32 


THE HOUSE OF REPRESENTATIVES. [I: 2, 3. 


44 slavery ” throughout the Constitution, as they made 
it. But these words are used in the amendments 
adopted after the Civil War. The words, 44 Persons 
bound to service for a term of years,” mean apprentices. 
As they are not slaves, they are to be counted in full. 

Since slavery is abolished, this three-fifths rule is ob¬ 
solete. The slave States have gained quite a number of 
Representatives in consequence of the abolition of 
slavery. 

In this representative population, the population 
of the Territories and the District of Columbia is not 
counted, because they send no Representatives to Con¬ 
gress. 

IV. Taxation on the same basis as repre¬ 
sentation. — The Revolutionary war had just been 
fought on the cry of 44 No taxation without representa¬ 
tion.” The authors of this Constitution were therefor© 
led to place taxation on the same basis as representation. 

A State could be taxed only because it was repre¬ 
sented, and only in such proportion as it was rep¬ 
resented. 1 

V. The census. — The process of counting the 
population is called a census. The first census was 
taken in 1790, and one has been taken every ten years 
since. Besides the actual number of inhabitants, a 
great amount of other useful information is gathered 
at each census, and published by the government. 

t 

VI. The number of representatives. — There 
are two limitations upon the number of Representatives: 

1. Each State must have at least one. 

2. There shall not be more than one to every thirty 
thousand of the representative population. 


1 See section 8 for a fall discussion of the subject of taxation. 



4 


Is 2, 3.] APPORTIONMENT OP REPRESENTATIVES. 33 

Congress lias from time to time fixed a ratio of rep¬ 
resentation, generally as soon as possible after each 
census. There are now a much less number of Repre¬ 
sentatives than one to every thirty thousand. 

If the ratio of representation were still one for every 
thirty thousand, we should have a House of Representa¬ 
tives containing over two thousand members, a number 
too large to transact legislative business. 

VII. Territorial delegates. — Under the Consti¬ 
tution the House of Representatives is composed of 
members from the States only. But each organized 
territory has been allowed to send a delegate, who has 
no vote, but who can speak on matters affecting the 
interests of his territory. 

VIII. The growth of the United States.— 
The growth of the United States in population and 
wealth has been one of unexampled rapidity, as the 
following table will show: 


Census of 

n 

Population. 

Ratio of 
representation. 

No. of 
represen¬ 
tatives. 

1790. 

3,929,214 

33,000 

105 

1800. 

5,308,483 

33,000 

141 

1810 . 

7,289,881 

35,000 

181 

1820. 

9,633,882 

40,000 

212 

1880. 

12.866,020 

47,700 

240 

1840. 

17,069,453 

70,680 

223 

1850. 

23,191.876 

93,420 

237 

1860. 

31,443,321 

127.381 

243 

1870. 

38,558,371 

131,425 

293 

1880. 

50,155,783 

151,912 

325 

1890. 

62,622,250 

173,901 

356 


The population given is that of the whole United States, not the 
representative population merely. 

The ratio of representation and the number of Representatives is 
that based on the census named. But the House elected under any 

O 


























> 


34 the HOUSE OF REPRESENTATIVES. [Is 2, 5. 

ratio of representation does not begin until three years after the 
census is taken. 

Wealth. — In 1870, the census valuation of all the private property 
of the United States was a little over thirty thousand million dol¬ 
lars, or on an average of about four thousand dollars to each family. 
As there are few great fortunes in the United States, this shows a 
high average of wealth and comfort among the people. 

CLAUSE 4. 

VACANCIES. 

When vacancies happen in the representation from any State, the executive 
authority thereof shall issue writs of election to fill such vacancies. 

I. How made. — A vacancy may be created (1) by 
death, (2) by resignation, (3) by expulsion, (4) by accept¬ 
ing an office under the United States, (5) if an ineligible 
person is elected. 

II. How filled. — When a vacancy occurs, the gov¬ 
ernor of the State from which the vacancy occurs call« 
a special election. To “issue writs of election,” does 
not mean that the governor appoints some one to fill 
the vacancy, but only that he calls a special election, 
when the people elect some one to fill the place. The 
power which can originally elect can also fill a vacancy. 
The person then elected does not serve full two years, 
but only the unexpired part of the term. 

CLAUSE 5. 

SOLE POWERS OF THE HOUSE. 

The House of Representatives shall choose their Speaker and other officers, 
and shall have the sole power of impeachment. 

I. Election of speaker. — The presiding officer of 
the House of Representatives is called the Speaker, in 
imitation of the title of the Speaker of the House of 
Commons. 1 


1 The Speaker of the House of Commons was called thus C’lginally, be¬ 
cause he was their spokesman in communicating their wishes U the king. 




I: 2, 5.] 


SOLE POWERS OF THE HOUSE. 


85 


The Speaker of the House is one of the members of 
the House, and as such he can vote and speak on all 
questions. But when he takes part in the debates, he 
must call some other person to the chair. He appoints 
all committees, and as legislation is mostly decided in 
the committee work, he has thus a great influence upon 
legislation. The real power of the Speaker is thus only 
second to that of the President. He holds his office at 1 
the pleasure of the House, but no instance has occurred 
of a Speaker being removed. Each new House elects 
its own Speaker. A Speaker is frequently reelected. 

II. Other officers. — The other officers of the 
House are not members of the House, and are appointed 
and removed at the will of the House. They are a 
Clerk, Sergeant-at-arms, Door-keeper, Postmaster and 
Chaplain. Besides these there are many persons em¬ 
ployed in various positions about the House. These 
employees are appointed by the Speaker, Clerk, Ser- 
geant-at-arms, Door-keeper or Postmaster, according to 
the nature of their duties. 

III. Power of impeachment. — The House of Rep¬ 
resentatives has also the power of impeachment, and 
the Senate of trying all impeachments. An impeach¬ 
ment trial is a political trial of some officer for a polit¬ 
ical offense, for the sake of removing him from office. 
An impeachment by the House only brings the case 
before the Senate. A committee of the House are 
appointed to conduct the prosecution. The whole sub¬ 
ject of impeachment will be treated in another place. 

IV. Another sole power.— The House of Repre¬ 
sentatives also has the sole power of originating bills 
for raising revenue. (See section 7.) 


POWERS. ^ ORGANIZATION 


THE SENATE. 


[1: & 


SECTION 3. 


THE SENATE. 


Senator* 


Qualification* of 
Senator* . 


Officer* 


Vacancle* 


Election *, 


Ilow chosen — hy State 

Legislatures. 

Numbers — two from each 

State. 

Term of office — six years. 
Voting power—one vote 

each. 

Classification—into three 
classes; one class to go 
out every other year. ... 


X. A1 

I. 8,1 

It 8,1 

It 8,1 


(a.) Age — thirty years.... 

(b.) U. S. Citizenship — 

nine years. 

(c.) Residence — in State 
from which chosen .. 

(d.) Must not hold a U. S. 

office . 

(e.) Must not be an unre- 

' entant rebel.Am. XIV 

(f.) Must take oath of office VI, 8 


It 8,» 
I, 8, 8 
It 8,8 
I, 8,8 
I, 8,8 


(a.) President —Vice Pres¬ 
ident of the U. S. 

0».) President pro tempore 
and other officers 
chosen by the Senate 


(a.) Filled tern 
ss of 
jovernor 


porarily, in 
recess of legislature, 
by gc 

(b.) Filled in other cases 
by legislature. 


(a.) Time and manner — 
fixed by State legis¬ 
lature . 

(b.) Or by Congress. 


It 8,4 
It 8,6 

It 8,8 
It 8,8 


I, 4,1 
I, 4,1 


rivilege* of Senator*. See Section 6. 


r 


Sole power* 

< 


1. To choose officers, ex¬ 

cept President. I, 8, & 

2. To try all impeachments I, 8, 6 
8. But judgment can only 

extend to removal 
from office and dis¬ 
qualification for hold¬ 
ing office . .... 1,8,7 

- 4. To elect a Vice Presi¬ 
dent when the elect¬ 
ors fall to choose one Am. XII 
5. To confirm certain offi¬ 


cers nominated by 

the President . II, 2, 8 

6. To confirm treaties pro¬ 
posed by the Presi¬ 
dent . II, 2, 8 


Separate power*. (See Section 5.) 

Legislative powers. (See Sections 7, 8, and 9, also Amend- 
menta I to X, and XIII to XV.) 


v 

































i: 3, 1.] 


ORGANIZATION. 


87 


CLAUSE 1. 

ORGANIZATION. 

The Senate of the United States shall be composed of two Senator* from 
each State, chosen by the legislature thereof, for six year* ; and each 
Senator shall have one vote. 

I. The Senate represents the states. — As the 
House of Representatives represents the people, so does 
the Senate represent the States. Under the confedera¬ 
tion the Delegates to Congress were sent by the States 
and not by the people. But now that a true national 
government was being organized, it was claimed with 
justice that the people should be represented, and not 
the States. But the smaller States refused to part with 
the power they had. At last the compromise was made 
that the House should represent the people and the 
Senate the States. 

II. Equality of representation. — Under the 
confederation each State had one vote; and if the dele¬ 
gates from any State were equally divided, the State 
lost its vote. A large State had no more voice in the 
affairs of the general government than did a small State. 
As long as these States were each in theory an inde¬ 
pendent sovereignty, it was fair enough that each 
should have one vote; just as a large man or a small 
man, a rich man or a poor man have each one vote. 
And under this Constitution, as a result of the compro¬ 
mise which left the Senate to represent the States, each 
State has an equal voice. But instead of giving each 
State one vote, with as many delegates as it pleases, the 
same end is attained in a simpler way by giving each 
State two Senators, and each Senator one vote. Under 
the present plan, if the two Senators from any State 
are opposed upon any question, instead of the State 


THE SENATE. 


38 


[Is 3, 2. 


losing its vote, it has one vote on each side of that 

question. 

III. How chosen - . — As Senators represent States, 
they are chosen by the government of the State, that is 
by the State legislature. (See section 4.) 

This manner of choice also makes the office of Sena¬ 
tor more dignified than that of Representative, as each 
Senator represents a whole State, while most Repre¬ 
sentatives represent a part of a State only. 

When a State legislature wishes the Senators and 
Representatives from that State to vote in any particu¬ 
lar way, it always recognizes the difference between 
Senators and Representatives. The resolution which is 
passed in such a case is always to instruct the Senators 
and request the Representatives. 

IY. Term or office. — The term of office of a Sen¬ 
ator is six years, three times as long as that of a Rep¬ 
resentative, and half longer than that of President. 
The object is to raise Senators above the whims and 
caprices of their constituents, so that they may consult 
their solid interests, rather than their immediate wishes. 

A Senator can be re-elected. Thomas Benton repre¬ 
sented Missouri in the United States Senate for thirty 
years, which is the longest term ever served by one per¬ 
son in either House of Congress. 

CLAUSE 2. 

CLASSIFICATION AND VACANCIES. 

Immediately after they shall he assembled in consequence of the first elec¬ 
tion, they shall be divided as equally as may be into three classes. The 
Beats of the Senators of the first class shall be vacated at the expiration 
of the second year; of the second class, at the expiration of the fourth 
year, and of the third class, at the expiration of the sixth year, so that 
one-third may be chosen every second year; and if vacancies happen by 
resignation or otherwise, during the recess of the legislature of any 
State, the executive thereof may make temporary appointments until 
tie next meeting of the legislature, which shall then fill such vacancies. 


X: 3, 2.J 


CLASSIFICATION OF SENATORS. 


39 


I. Classification of senators. — Senators are so 
classified that one-tliird of them go out every other year. 
This object is accomplished by the following process: 

1. The first Senate which met in 1789, was divided 
by lot into three classes, as equal as possible, the first 
class to serve two years (till 1791); the second class to 
serve four years (till 1793), and the third class to serve 
six years (till 1795). Care was taken that the two Sen¬ 
ators from the same State should not be put in the same 
class, so that no state should change both its Senators 
at the same time. 

2. After the first classification, each class holds for 
six years, and Senators come in and go out with the 
class to which they are elected. 

3. But whenever a new State is admitted to the 
Union, the two new Senators are assigned to the next 
classes in order, so as to keep the classes as nearly equal 
as possible. But the two Senators determine by lot 
between themselves which has the longer and which the 
shorter term, and the length of term of the new Sena¬ 
tors will depend on the length of time before the classes 
go out to which they are assigned. 

The Senate is thus a permanent body. There are 
always two-thirds, or nearly two-thirds, of the Senators 
in office, while the House every two years is dissolved, 
and must be reorganized. 

II. Vacancies. — A vacancy in the Senate may oc¬ 
cur for the same reasons as a vacancy in the House. A 
vacancy in the Senate is filled by the State government 
of the State which the Senator represented,— by the 
legislature, if in session, or by the governor, if the legis¬ 
lature is not in session. When the governor appoints, 
the Senator then appointed only holds until the legisla¬ 
ture can elect. But when the legislature elects, it is 
for the unexpired portion of the term. 


40 


THE SENATE. 


[1:5,4. 


Thus it often happens that a vacancy occurs in the 
Senate, which is filled, first by the appointment of the 
governor for a few months, and then by election by the 
legislature for the rest of the unexpired term. But if 
the vacancy occurs when the legislature is in session, 
the governor cannot appoint a Senator, but the whole 
matter is in the hands of the legislature. 

CLAUSE 3. 

QUALIFICATIONS OF SENATOR. 

No person shall be a Senator, who shall not have attained to the age of 

thirty years, and been nine years a citizen of the United States, and who 

shall not, when elected, be an inhabitant of that State for which ho 

shall be chosen. 

The qualifications for senators. —These are placed 
a little higher than for Representatives. They are: 

1. Age — thirty years. 

2. Citizenship of the United States — nine years. 

3. Residence — of the State from which elected. 

Two cases have occurred of ineligibility, Albert Gal¬ 
latin (born in Switzerland), who was elected from 
Pennsylvania; and Gen. Shields (born in Ireland), who 
was elected from Illinois. 

Both seats were declared vacant by the Senate. But 
Gen. Shields was re-elected as soon as he was eligible. 

The disputed questions about Representatives apply 
also to Senators. (See page 28.) 

CLAUSE 4. 

THE PRESIDENT OF THE SENATE. 

The Vic© President of the United States shall be President of the Senate, 
but shall have no vote unless they be equally divided. 

The president of the senate. — In order to give 
the Vice President of the United States something to 
do, he was made President of the Senate. As he is not 


1: 3, 5.] 


OTHER OFFICERS. 


41 


a member of that body, he has no vote, and no right to 
discuss questions. But when the Senate is equally 
divided, he has a casting vote. 

It is often erroneously supposed that the President 
pro tem. of the Senate or the Speaker of the House has 
a casting vote. This is not true. Each of these pre¬ 
siding officers has one vote as a member of the body 
over which he presides, but no casting vote. If in such 
a case the vote is a tie, it is lost, as it requires a majority 
to carry a vote, and a tie lacks one vote of a majority. 

The Vice President can appoint no committees in the 
Senate, because he is not elected by the Senate, and 
does not represent them as the Speaker does the House. 
The Senate elects its own committees. 

The Vice President of the United States when acting 
President of the Senate, is simply a presiding officer. 
He puts motions, preserves order, and decides questions 
of order, subject to an appeal to the Senate, but cannot 
debate or vote (except the casting vote). 

CLAUSE 5. 

OTHER OFFICERS. 

The Senate shall choose their other officers, and also a President pro Um- 
pore in the absence of the Vice President, or when he shall exercise the 
office of President of the United States. 

Other officers of the senate. — The other 
officers of the Senate are the same as in the House, and 
are appointed and removed by the Senate at pleasure. 
In the absence of the Vice President, or when he acts 
as President, the Senate elect one of their own number 
as President pro tempore , that is temporary President. 
The custom of the Senate is to elect a President pro 
tempore the first day of each session, who presides when¬ 
ever the Vice President is absent. Whenever the office 


42 


THE SENATE. 


[I: 3, «. 


of Vice President of the United States becomes vacant 
by death, resignation, removal or promotion to the 
office of President, the President pro tempore becomes 
President of the Senate, but he is not Vice President of 
the United States, though often erroneously called so. 

The President of the Senate pro tempore , when act¬ 
ing in place of the Vice President of the United States 
as President of the Senate, has the same duties as pre¬ 
siding officer, but he has not the privilege of the cast¬ 
ing vote, and has the privilege of his own vote as Sen¬ 
ator on all questions. He has also the privilege of 
speaking on any question, by calling some other Sena¬ 
tor to the chair. Except in the appointment of com¬ 
mittees, he has the same duties as the Speaker of the 
House. 

CLAUSES 6 AND 7. 

IMPEACHMENT. 

The Senate shall have the sole power to try all Impeachments. When sit¬ 
ting for that purpose, they shall be on oath or affirmation. When the 
President of the United States is tried, the Chief Justice shall preside; 
and no person shall be convicted without the concurrence of two-thirds 
of the members present. 

Judgment in cases of impeachment shall not extend further than to removal 
from office, and disqualification to hold and enjoy any office of honor, 
trust or profit under the United States; but the party convicted shall 
nevertheless be liable and subject to indictment, trial, judgment and 
punishment, according to law . 1 

I. The high court of impeachment. — As tbe 
House of Representatives alone impeaches, the Senate 
alone tries all cases of impeachment. In an impeach¬ 
ment trial the Senate sits as a High Court of Impeach¬ 
ment, and acts in a judicial capacity. Senators are 
therefor* in such a case put upon oath or affirmation to 
try the case justly. A majority of two-tliirds is needed 


1 See comments on Article II, section 4 (page 199). 



1: 3, 7.] 


IMPEACHMENT. 


43 


r -o convict. When the President of the United States 
is tried, the Vice President or the President pro tempore 
of the Senate might be interested to have him con¬ 
victed, in order to succeed to the place of President. It 
is therefore provided that when the President of the 
United States is tried, the Chief Justice shall preside. 

II. Judgment in cases of impeachment. — As an 
impeachment trial is a political, and not a criminal trial, 
the punishment is a political, not a criminal one. Con¬ 
viction on impeachment carries with it removal from 
office; and the officer convicted may also bo declared dis¬ 
qualified from ever holding a United States office again. 

If the offense is a criminal one as well as a political 
one, the political trial will not prevent a criminal trial 
also. 


* 




u 


ELECTIONS AND SESSIONS. 


tl: 4.1. 


SECTION 4. 

ELECTIONS AND SESSIONS. 

(a.) Time, place and manner prescribed by 

State legislature. 1*4*1 

(b.) But may be altered by Congress. I* 4, 1 

(c.) Except as to place of choosing Senators. I, 4,1 

(a.) Sessions annual. I, 4, * 

(b.) Begin on first Monday of December.. L, 4, S 

(c.) Unless another day is fixed by law. L, 4, S 

(d.) Special sessions may be called by the 

President. . n. • 

CLAUSE 1. 

ELECTIONS TO CONGRESS. 

The times, places, and manner of holding elections for Senators and Repre¬ 
sentatives shall be prescribed in each State by the legislature thereof; 
but the Congress may at any time by law make or alter such regulations, 
except as to the places of choosing Senators. 


Elections to 
Congress. 


U. Sessions or 
Congress 


1 


i 

i 

i 


I. The constitutional provisions. — The Consti¬ 
tution provides in relation to election of Senators and 
Representatives, 

1. That each State may prescribe the time and place 
and manner of holding elections for Senators and Rep¬ 
resentatives; 

2. But that Congress may assume control over a part 
or all of the subject, at any time; 

3. But Congress is forbidden to prescribe the place of 
choosing Senators. As these are chosen by the State 
legislatures, it is wise to forbid Congress to prescribe 
where the election shall be held. Otherwise, Congress 
might prescribe that Senators should be chosen at some 
other place than the State capitol, or even outside of 
the State altogetno* 









Is 4, 1.] 


ELECTIONS TO CONGRESS. 


45 

When Congress has made any regulations relating tc 
time, place and manner of choosing Senators or Repre¬ 
sentatives, that supersedes any State law. But, so far 
as Congress has not prescribed any of these things, the 
State laws govern it. 

II. Provisions made by congress. — For a long 
time Congress left this whole matter to the several 
States, and the greatest variety prevailed. A part of 
the States elected Representatives in the spring, a part 
in October, and a part in November. A part of the 
States elected by ballot and a part by viva voce vote. 

Recently Congress has by law prescribed certain 
things in relation to the time and manner of these elec¬ 
tions, leaving other questions still open. The elections 
of United States Senators have been fully provided for 
by act of Congress; the regulations respecting the elec¬ 
tion of Representatives are not so minute. Both are 
given below. 

III. Election oe senators. — Senators are chosen 
as follows: 

The last session of a legislature before the term of a Senator from 
that State expires is the time; and the day is the second Tuesday 
after the legislature has met and organized; the place, of course, 
is the capitol of the State, except when in time of public danger 
the legislature is called to meet at some other place. Each house 
first votes separately by a viva voce vote. Next day a joint conven¬ 
tion of both houses is held, when the result in each house is read. 
If the same person has a majority of all the votes in each house, he 
is declared elected. But if no one has such a majority of each house 
of the legislature, the members of both houses in joint convention 
immediately proceed to vote for Senator. They must meet in joint 
convention and vote at least once each day until a Senator is elected. 
Ail votes must be viva voce, that is, as the roll is called each mem¬ 
ber of the legislature must rise in his place and name the person he 
votes for. A majority of all the votes cast is required to elect. 

In case of a vacancy, the legislature proceeds to fill the vacancy 
in the same way, on the second Tuesday of the session after the 


46 


[Is 4, 2. 


ELECTIONS AND SESSIONS. 

vacancy occurs; or if the legislature is in session when the vacancy 
occurs, on the second Tuesday after it is notified of the vacancy. 

IV. Election of representatives. 

Representatives must be elected from districts of contiguous terri- . 
tory on the Tuesday after the first Monday of November in 1876, 
and every two years thereafter. Vacancies are filled by a special 
election called by the Governor. All votes must be by ballot. In 
a few States which find it difficult to change their State constitn- 
tion, Congress has suspended the operation of this law, but as soon 
as possible all the States must arrange to hold their election for 
Representatives and for Presidential Electors on the Tuesday after 
the first Monday of November. 

CLAUSE 2. 


SESSIONS OF CONGRESS. 

The Congress shall assemble at least once in every year, and such meeting 
shall be on the first Monday in December, unless they shall by law ap¬ 
point a different day. 


I. When congress meets. — Congress must meet 
at least once each year. As a Congress lasts two years, 
each Congress has at least two sessions, and may have 
more. 

The regular sessions of Congress begin on the first 
Monday of December each year. 1 The first regular ses¬ 
sion of Congress lasts until the adjournment some time 
in the next summer, and is called the long session. The 
second regular session lasts until the fourth of March, 
at noon, when the terms of office of all the Representa¬ 
tives and of one-third the Senators expire. This is 
therefore called the short session. 

A special session may be called by the President for 
extraordinary reasons. (II, 3.) 

A session of Congress may be ended in one of three 
ways: 


i For a few years Congress had three sessions, the first beginning on th« 
fourth of March, and the other two on the first Monday of December; 



IS 4, 2.J 


SESSIONS OF CONGRESS. 


47 


1. The two Houses may agree to adjourn. 

2. The term for which all the Representatives and 
one-third of the Senators were elected may expire. This 
happens every odd year on the fourth of March. 

3. In case the two Houses disagree in respect to the 
time of adjournment, the President can adjourn them. 
This case has never occurred, but it is provided for in 
the Constitution. (II, 3.) 

II. Where congress meets. — The Constitution 
does not fix the place where Congress shall meet. But 
the place now provided is the Capitol at Washington. 
But when, in case of invasion or contagious disease, it 
would be unsafe for Congress to meet at Washington, 
the President is authorized by law to convoke Congress 
at some other place. Or Congress, when in session, has 
the right to adjourn to meet at some other place, if it 
so chooses. But since the seat of government was 
established at Washington, Congress has always met 
there. 1 

III. The organization oe congress. 

On the fourth of March, at noon, every odd year, one Congress 
closes its existence, and a new Congress begins. The entire House 
of Representatives goes out of office, those members who have 
been re-elected as well as those who are elected for the first time. 
One-third of the Senate also goes out of office. 

As the Senate is a permanent body, it does not need to reorganize 
when it meets. The Vice President takes his place as President of 
the Senate, or, if he is absent, a President pro tempore is chosen, 
the new members are sworn in, and the Senate is ready for 
business. If there are two claimants for a seat, neither is sworn in 
till the case is decided by the Senate, when the one whom the Sen¬ 
ate decides to have been lawfully elected is sworn in. 

‘The Continental Congress met in the following places: Philadelphia, 
1774-76; Baltimore, 1776; Philadelphia, 1777; Lancaster and York, 1777; 
Philadelphia, 1778-83; Princeton, 1783; Annapolis, 1783; Trenton, 1784; 
New York, 1785-9. The Constitutional Convention was held at Philadel¬ 
phia in 1787, this Constitution was ratified in 1788, and went into effect in 
1789. The seat of government since then has been: New York, 1789-17804 
Philadelphia, 1700-1800; Washington, 1800 to the present time. 



48 


ELECTIONS AND SESSIONS. 


[Is 4, 2 . 


But when a new House of Representative meets, the scene is 
different. The Clerk of the last House makes out the roll of the 
members who hold certificates of election, who are sworn in, and 
who then proceed to elect a Speaker. Sometimes this is done at 
once; but sometimes, when parties are closely balanced, it takes 
weeks, and even months, to elect a Speaker. Until that is done, 
the House can do no business, and has no legal organization. But 
as soon as a Speaker and other officers are elected, the House is 
organized and ready for business. 

In case there are two claimants for a seat, the Clerk puts upon 
the roll the name of the one who has a certificate of election from 
the proper state authorities, who therefore votes in the election of 
officers. But it often happens that when the contest for the seat is 
decided by the House, the sitting member is ousted and his oppo¬ 
nent is seated. It is usual to vote a salary and erpenses of contest 
to both claimants. Thus it is sometimes a good thing to be a 
defeated candidate for Congress 



, 1 v‘-1 r 


1 






POWERS OP EACH HOUSE SEPARATELY 


l: 5, 1.] POWERS OP EACH HOUSE SEPARATELY. 49 


SECTION 5. 


POWERS OF EACH HOUSE SEPARATELY. 

I. Judge op Elections, Returns and Qualifications 

of its members... .. I, M 

(a.) A majority ordinarily...... I, 1 

(b.) For election of President, two- 

thirds of the States. Am. HI 

II. Quobuk. 1 . Adjourn from' 

day to day... 

2. Compel absen¬ 
tees to attend. 


(c.) A less num¬ 
ber can.... 


I» M 


III. DISCIPLINE... •i 


IY. Publicity 


Y. Adjournment. 


(a.) Make rules. I, ft, • 

(b.) Punish a violation of these by 

members. I, 5,1 

(c.) Expel a member by two-thirds 

vote. 1 . 6 ,* 

(d.) Punish other persons for con¬ 
tempt (common law). 

r (a.) Keep a journal. I, 8 

(b.) Publish it, except what requires 

secrecy. 1 , 8,1 

(c.) Yeas and Nays, on call of one- 

fifth present. I , 8,8 

(a.) Both Houses can adjourn at any 

time..(implied) 

(b.) One House can adjourn for three 

days or less. I, 5, 4 

(c.) But not to a different place. 1, ft, 4 


CLAUSE 1. (Part First.) 

JUDGE OF ELECTIONS. 

Each House shall be the judge of the elections, returns, and qualifica¬ 
tions of its own members, and a majority of each shall constitute 
a quorum to do business; but a smaller number may adjourn from 
day to day, and may be authorized to compel the attendance of absent 
members, in such manner and under such penalties, as each House may 
provide. 

I. Each house the judge of elections, re¬ 
turns and qualifications.— In Parliament and in 

D 




























50 POWERS OF EACH HOUSE SEPARATELY. [1: 5, 1. 


the State legislatures when this Constitution was 
adopted, each House was the judge of the elections, re¬ 
turns and qualifications of its own members. Conse¬ 
quently the same power was given to each House of 
Congress. 

When it is said that each House shall be a judge of 
the elections and returns of its members, it is meant that 
each House has the power to decide whether a member 
was lawfully elected or not, or of two persons both 
claiming to be elected, to decide which one is justly 
entitled to the seat. 

When it is said that each House shall be a judge of 
the qualifications of its members, it is meant that each 
House has the power to decide whether any particular 
member has the qualifications required under the Con¬ 
stitution. (See sections 2 and 3.) 

Taken together, these powers give each House of 
Congress power to decide who are its members and who 
are not. The decision of each House is final and can¬ 
not be reviewed by the other House or by the courts. 

II. The process of deciding contested elections. 

After each election for Representative, the proper officers in each 
State canvass the votes actually cast and decide which of the can¬ 
didates are elected. A certificate of election is then given by the 
Governor or Secretary of State to the candidate who has the largest 
number of votes, as decided by the canvassing officers. 

Should the defeated candidate claim that he was rightfully 
elected, and was cheated out of it by some fraud or mistake in the 
election or in counting the returns of the election, he can appeal to 
the House of Representatives, who will decide his case upon the 
merits. But meanwhile the person who has the certificate of elec¬ 
tion, takes the seat and votes. 

The process of contesting an election is now specified by law. 
Within thirty days after the result of the election has been declared, 
the defeated candidate must give notice to the successful candidate 
that he will contest his election and specify the grounds upon which 


1:5, 1.] 


JUDGE OF ELECTIONS. 


51 


he will contest it. Within thirty days after that the successful 
candidate must reply, stating the grounds upon which he relies to 
support his case. The case then goes before some judge, who takes 
all the testimony brought by both sides and their written statements 
and forwards them to the clerk of the House of Representatives. 

As soon as the House is organized, the Speaker appoints, with 
other committees, a committee on Elections. All contested cases 
are referred to this committee, who examine the evidence sent them, 
and hear the arguments of lawyers on each side, and then report to 
the House which of the two claimants is entitled to the seat. 

The House then votes on the report, and decides which candidate 
was lawfully elected. In deciding this question, the committee on 
Elections and the House go back of the returns, and decide on the 
evidence presented, whether any illegal votes were cast, whether 
any mistakes were made in making out the returns, and so on, 
and then aim to decide according to the real wish of the people of 
the district without regard to legal technicalities. 

The process of deciding a contested election in the Senate is sim¬ 
pler. The question goes directly to the committee on Elections, 
and by them is reported to the Senate, who decide, as in the House 
of Representatives. 

But the power to decide contested election cases has proved a 
dangerous power in the hands of a partisan majority. Whichever 
party has the majority, is very apt to decide contested elections in 
favor of its own side, rather than in favor of justice. 

When the question is one of qualification, it goes to the commit¬ 
tee on Elections and then to the House. But in such a case there 
is no contest. For to prove a member elect to be disqualified, does 
not seat his opponent; but only creates a vacancy to be filled in the 
regular way. 

III. Recognition of states. 

Incidental to the question of qualification is the question whether 
the State from which the Senator or Representative comes accred¬ 
ited is a State in the Union or not. 

If either House does not recognize a State as a State in the Union, 
it of course refuses to receive the members from that State. 

When a new State is received into the Union, its formal recogni¬ 
tion as a State is made by receiving its Senators and Representa¬ 
tives into the Senate and House. When the conquered rebel States 
were received back into the Union, it was by receiving their Sena¬ 
tors and Representatives into Congress. 





52 POWERS OF EACH HOUSE SEPARATELY. [I: 5, i. 


It follows from this that a State may be recognized by one House 
and not by the other. But the two Houses have always tried to 
■work in harmony on this question. 

CLAUSE 1 . (SeconB Part.) 

QUORUM. 

IV. What is a quorum? —A quorum is a sufficient 
number to do business legally. 

In a large body like either House of Congress, it is 
plain that it would not do to require all the members 
to be present before any business can be done. It would 
be very difficult to have all attend any one day. And yet 
ft would not be fair for a few members to do business in 
the absence of the rest, whose votes would perhaps have 
decided the business in a different way. Some number 
must be fixed as a quorum. 

The Constitution fixes that number at a majority. 

But when the House of Representatives is called on 
to choose a President, a quorum for that purpose con¬ 
sists of a member or members from two-thirds of tho 
States (Am. XII). 

Y. Powers of a less number. — But it often hap¬ 
pens that a majority are not present to do business. 
And it has sometimes happened that a number of mem¬ 
bers absent themselves purposely to prevent business 
being done. 

Two powers are therefore given to a less number than 
a quorum: 

1. They may adjourn till the next day, and so on day 
after day, till a quorum is present. 

2. Or they may compel the attendance of absent mem¬ 
bers, in accordance with the rules already fixed by the 
House. 

Under the rules of the House of Representatives, no 


H5,2.] 


DISCIPLINE. 


S3 


member has a right to stay away from a session of the 
House, unless he is excused or is sick. Absentees, who 
are not excused or sick, can be arrested by special mes¬ 
senger and brought into the House. By the rules, 
fifteen members, including the Speaker, can compel the 
attendance of absent members. 

VI. Pairs. 

If a member is absent on an important vote, his party will lose 
his vote. In order to obviate this evil, there is an understanding 
among the members of both parties, that if a member must be 
absent, he can agree with some member of the other party to pair 
with him. The member who is absent cannot vote, and the mem¬ 
ber who is paired with him is allowed by the courtesy of the House 
not to vote, dhe result is the same, as if both were present and 
voted on opposite sides. 

CLAUSE 2. 

DISCIPLINE. 

SCach House may determine the rules of Its proceedings, punish Its members 
for disorderly behavior, and with the concurrence of two-thirds, expel a 
member. 

I. Rules of each house. — The rules adopted are 
the general code of Parliamentary practice, with some 
special changes and additions to suit the circumstances 
of each House. The rules of Parliamentary practice, as 
they are called, grew up in the growth of the English 
Parliament, and have now been adopted with slight 
changes by all deliberative bodies where the English 
language is spoken. 1 Under this section, either the 
Senate or House of Representatives can alter any of 
these rules or make new ones for itself, whenever it 
chooses. And the rules of the two Houses need not be 
the same. Each House makes its own rules. Of course 

1 The usual Parliamentary rules can be found in any good manual like 
Ro' erf s Rules of Order, Cushing’s Manual, or .Jefferson’s Manual. The rules 
of the Senate and House of Representatives are published each year in the 
Manual of Congress- 



54 POWERS OF EACH HOUSE SEPARATELY. [I: 5, 2. 


tlie rales must be subject to the Constitution. Thus, a 
rule making a greater or less number than a majority a 
quorum would be unconstitutional. 

II. Power to punish its own members. — Rules 
would be of no use, unless there were some power to 
enforce them, and to punish for disobedience. There¬ 
fore, each House has the right, not only to make the 
rules for its own proceedings, but to punish those who 
violate those rules. The offenses which may be pun¬ 
ished are not exactly defined, nor are the kind of pun¬ 
ishments; but the punishments for members are usually 
reprimand or fine, and in extreme cases expulsion. For 
expulsion, a two-thirds vote is needed. A large discre¬ 
tion is thus given to either House, which might be 
abused, but is not likely to be. 

The power over members is not limited to offenses 
committed by members in their capacity as members, or 
during the session of Congress. But a member may be 
punished for any disorderly or unparliamentary action, 
or for any conduct which renders him unfit to be a 
member. 1 

As Senators or Representatives cannot be impeached 
or removed in any other way or by any other power, 
this power of expulsion is the only safeguard against 
unworthy members. 

III. Power to punish persons not members.— 
Besides this power over its own members, each House 


1 In July, 1797, William Blount was expelled from the Senate for a high 
misdemeanor entirely inconsistent with his public trust and duty as a Sen¬ 
ator. “ The offense charged against him was an attempt to seduce an Amer¬ 
ican agent among the Indians from his duty and to alienate the affection and 
contidence of the Indians from the public authorities of the United States, 
and a negotiation for services in behalf of the British government among 
the Indians. It was not a statutory oftense, nor was it committed during the 
session of Congress, nor at the seat of government. Yet by an almost unan¬ 
imous vote, he was expelled trom that body.” (Story, 838.) A Representa¬ 
tive from South Carolina was expelled for receiving money for appointing » 
cadet to West Point, and other members have been expelled lor various 
offenses. 



Is 5, 3.] 


PUBLICITY 


55 


has the power to punish other persons for a breach of 
its privileges, for disorderly conduct, or for contempt. 
No such power is expressly given by the Constitution. 
But it is a principle of the common law, that the power 
to preserve order and to punish for contempt belongs to 
courts of law and to legislative bodies. The power of 
either House to punish for contempt or disorderly 
behavior, is limited to reprimand, fine, or imprisonment, 
and to the session of Congress at which the offense is 
committed. 1 

IY. Some disputed question's. 

1. Can a member be punished for an offense committed before he 
became a member ? Probably not; the decisions have thus far been 
to that effect. And the House of Representatives has gone so far 
as to decide that it could not even punish a member for corrupt 
conduct in a previous term. But these decisions do not legally bind 
future Houses, and a flagrant case may arise sometime which will 
lead to an opposite decision. 

2. Can either House imprison a person not a member ? Yes; but 
only during the session. When the session of Congress closes the 
prisoner must be released. The imprisonment in such cases is in 
one of the committee rooms, under guard of the Sergeant-at-Arms 
or one of his subordinates. 


CLAUSE 3. 

PUBLICITY. 

Each House shall keep a journal of its proceedings, and from time to time 
publish the same, excepting such parts as may in their judgment require 
secrecy, and the yeas and nays of the members of either House on any 
question shall, at the desire of one-ilfth of those present, be entered on 
the journal. 

I. The value of publicity. — In a popular gov¬ 
ernment like ours, the people ought to be able to know 


i The Supreme Court has repeatedly decided, tbat either House may pun¬ 
ish persons not members for a breach of the privileges of the House, and 
that there is no appeal from the decision. Persons have actually been pun¬ 
ished for the following offenses: An attempt to corrupt a member; a 
challenge sent a member to fight a duel; a printed libel on the Senate; an 
assault upon a member for words spoken in debate; refusal to testily before 
a committee of investigation- 



56 POWERS OF EACH HOUSE SEPARATELY. [I: 5, 8. 


what their representatives are doing. It is a good to 
the legislators and it is a good to the people. The 
members of Congress need publicity, to check them in 
corrupt or unwise conduct, by the condemnation of the 
people. They also need it to secure public applause for 
any ability they may show in advocating or carrying 
through wise measures. The people need publicity in 
the proceedings of Congress, so that they may know 
whether their representatives are worthy of re-election, 
and they also need to read the discussions and votes in 
Congress for their own education in political questions. 

II. How publicity is secured. — Publicity of the 
proceedings in Congress is secured by the Constitution 
in two ways: 

1. By keeping and publishing a journal of their pro¬ 
ceedings. 

2. By recording the vote of each member, when one- 
fifth of those present call for it. 

Besides these ways, publicity is effectually secured in 
three other ways: 

1. Spectators are admitted to the proceedings. Gal¬ 
leries are built expressly for the public, and certain dis¬ 
tinguished persons are admitted to the floor of each 
House. Among these are the President and Vice Pres¬ 
ident, Cabinet officers, the members of the other House, 
U. S. Judges, State Governors, the chief officers of the 
Army and Navy, and foreign ambassadors. 

2. The reporters of newspapers are admitted, and are 
furnished every facility for reporting the proceedings in 
full. By the aid of the telegraph, the proceedings of 
each day in Congress are now printed the next morning 
in all the leading newspapers, which in the course of 
that day reach almost every village in the land. These 
reports are often fuller and more correct than the 


PUBLICITY. 


1:5, 3.] 


57 


official report. Hundreds of thousands of voters read 
them with the closest interest. 

3. Members are in the habit of having their speeches 
printed and sent to everybody who is likely to take an 
interest in them. 

III. Publishing the journal. — The journal of 
the proceedings of each House is kept by Clerks, and is 
printed and laid on the desk of each officer and member 
of each House the next morning. It is published in 
volumes in the Congressional Globe. 

Those parts which require secrecy are not published. 
The House of Representatives usually has no secret 
sessions, and the Senate only when it does business 
which it shares with the President* hence called execu¬ 
tive business. Such sessions are called executive sessions . 

Executive business is of two kinds: the confirmation 
or rejection of appointments to office, and the confix 
mation or rejection of treaties. It is obvious that se¬ 
crecy is proper in both of these cases. When the 
Senate goes into executive session, all persons are shut 
out except the Vice President, the Senators and a few 
trusty officers, who are sworn to secrecy. Yet the re¬ 
porters for the press generally manage to find out and 
publish what was done in executive sessions, in spite of 
all these precautions. 

The case might arise, that would require both Houses 
to go into secret sessions; but it would be a very extra¬ 
ordinary case indeed, such as the question of a great 
foreign war, or the insanity of the President. 

IY. Metiiols of voting in congress. — There are 
three ways of voting in Congress. 

1. By acclamation. The presiding officer puts the 
question, and all who are in favor of it say u aye,” then 
after a pause, all who are opposed say “ no.” If they 


58 POWERS OF EACH HOUSE SEPARATELY. [I: 5, 3. 


are nearly all one way or the other, it is easy to decide, 

and time is saved. 

2. If the vote by acclamation is nearly balanced, 
the presiding officer either says he cannot decide, or 
some one calls for a division of the House, when a ris¬ 
ing vote is taken, and the members are counted. If this 
is not satisfactory, a call may be made for tellers. The 
presiding officer then appoints two tellers, who take 
their position in front of the speaker, and the members, 
first those in the affirmative, then those in the negative, 
pass between the tellers and are counted by them. 

3. But in important questions, where a record of each 
member’s vote is wished, the ayes and noes (or yeas 
and nays) are called for. The method of calling for 
them is thus: Some member addresses the chair, and 
says, “ I call for the ayes and noes,” the chair then says, 
“ Is the call sustained?” All those rise who are in favor 
of the call, and if these are one-fifth of all present, the 
call is sustained; the roll is then called and each mem¬ 
ber’s vote is recorded. 

Y. The object of calling the yeas ahd hays. — 
The object of calling the yeas and nays is to make an 
official record of each member’s vote, so that his con¬ 
stituents and the country generally may know how he 
voted. When such record is made, members are apt to 
be more careful how they vote. At least one-fifth of 
those present must call for the yeas and nays, because 
to call the roll of members takes a long time, and if one 
or two members could compel such a call, business 
would be constantly delayed. But on the other hand, 
if it required a majority vote to record the ayes and nays, 
a corrupt majority could easily refuse to record their 
votes, find thus rush through bad measures without any 
check. As it is, one-fifth of the members can always 


ADJOURNMENT. 


59 


cnpel a call of the yeas and nays, and thus make each 
member give his vote in such a way that the responsi¬ 
bility for it can be proved upon him. 

As it is, this power of calling for the yeas and nays is 
often used by the minority to stave off a measure which 
they cannot prevent by a direct vote. Thus when a bill 
is before the House whose passage the minority are 
anxious to hinder as long as they can, they will make 
what are called “ dilatory motions,” that is they will 
move to adjourn, to lay the bill on the table, to refer it 
to one of the standing committees, to refer it to a special 
committee, or to amend it in various ways, and on all 
these motions will call for the yeas and nays, besides 
having the right to make speeches on most of them. 
By these expedients the passage of any bill may be de¬ 
layed for several days. 

CLAUSE 4. 

ADJOURNMENT. 

Neither House, during the session of Congress, shall, without the consent of 
the other, adjourn for more than three days, nor to any other place than 
that in which the two Houses shall he sitting. 

Adjournment. —If either House could adjourn to any 
time or place, without the consent of the other, it might 
cause a great deal of trouble and inconvenience, which 
is prevented by this clause. 

The two Houses must be in session at the same time 
and place. Only one exception is allowed. 

Either House may adjourn for three days or less with¬ 
out asking the consent of the other. This is to allow 
for Sundays and holidays, and other • special occasions. 

In case the two Houses cannot agree upon the time 
of adjournment, the President has the power to adjourn 
them to any time he may think proper (II, 3). This 
power has never been exercised. 


POWERS or MEMBERS. 


•50 


POWERS OF MEMBERS. 


[I: 0,1. 


SECTION 6. 


POWERS OF MEMBERS. 


r 


I. PRTVTLIGU8 < 


1. Salary... • 


2. From ar¬ 
rest. .. 


8. Of Speech 


(a.) Fixed by law. I» 6,1 

(b.) Paid from the U. S. 

Treasury. I, 6, 1 

(a.) During session and 
going and return- 
lug . I. 6, 1 

(b.) Except for treason, 
felony, and breach 
of the peace. I, 8 1 

(a.) For speeches in the 

House. . I, 6, 1 

(b.) Can be punished by 

the House. I, 6,1 

(c) But by no other 

power. I, 6, 1 


IL Rsstbio- 

TiONU.. .. 


I 


1. Cannot hold U. S. office . I, 6, 8 

2. Cannot be appointed to an office cre¬ 

ated or made more valuable for his 
sake. . I, 6, 8 

8. Cannot be Presidential elector.II, 1, 8 


CLAUSE 1. 

PRIVILEGES OF MEMBERS. 

The Senators and Representatives shall receive a compensation for their 
services, to be ascertained by law, and paid out of the Treasury of the 
United States. They shall in all cases except treason, felony and breach 
of the peace, be privileged from arrest during their attendance at the 
session of their respective Houses, and in going to and returning from 
the same; and for any speech or debate in either House, they shall not 
be questioned in any other place. 

I. Salary paid by tiie Ueited States. — In En¬ 
gland members of Parliament are not paid. Under the 
Confederation, the delegates were paid by the States 
that sent them. Members of Congress are paid for their 





















1: 6, l.J 


PRIVILEGES OF MEMBERS. 


61 


services, so that poor men can afford to go to Congress; 
and they are paid by the United States, so that their 
pay shall be equal, and that they may be independent 
of dictation by their State legislatures. Besides, they 
act for the whole United States, and not for their own 
State only, and therefore it is fair that they be paid by 
the United States. 

The pay of Senators and Representatives was origi¬ 
nally six dollars a day for each day’s service, and six dol¬ 
lars for every twenty miles of travel to and from the 
seat of government. It is now fixed at $5,000 a year, 
and twenty cents a mile for traveling expenses. The 
Speaker of the House receives $8,000 a year, and the 
President pro tempore of the Senate the same, when he 
acts as President of the Senate. 

Congress fixes the salaries of its own members. Sev¬ 
eral times a Congress has raised the salaries of its mem¬ 
bers, not only for the rest of its term, but has made the 
increase apply back to the beginning of its term. 

There is nothing in the Constitution to prevent 
this, although it is evidently unjust. An amendment 
was proposed in 1789, which, if it had been adopted, 
would have prevented these w back salary grabs” (see 
page 251). 

II. Privilege from arrest. — The privilege of 
members of Congress from arrest is common to all 
legislative bodies, here and in Europe, and for the same 
reason, that their constituents may not be defrauded of 
their voices and votes for any frivolous reason. This 
freedom from arrest does not cover: 

1. Arrest on the charge of treason. 

2. Arrest on the charge of a felony, that is, any crime 
which is punishable by death or imprisonment in a 
penitentiary. 


62 


POWERS OF MEMBERS. 


[1:6 , 1 . 


3. Arrest for breach of the peace, that is, any act that 
disturbs public order, such as assault and battery. 

But it does cover: 

1. Arrest for any misdemeanor, except breach of the 

peace. 

2. Service of any civil process, such as a suit for debt, 
a subpoena as a witness, or a summons to serve on * 
jury. 

This privilege from arrest covers the time of the ses¬ 
sion, and the time necessary to go to Washington before 
the session and to return after it. It is not necessary 
for a member to be sworn in before enjoying this privi¬ 
lege, otherwise he might be arrested when going to the 
first session in order to be sworn in, and thus be pre¬ 
vented from taking his seat at the proper time. 

ill. Freedom of debate. — The privilege of free¬ 
dom of speech is given to members of Congress. 

This freedom differs from the freedom of speech out¬ 
side of Congress, granted to all citizens by Amendment 
II, in giving freedom from libel suits, as well as all 
other freedom of speech. 

Members are privileged from arrest for words spoken 
in debate. For indecent or libelous words spoken in 
debate they may be punished by their own House, but 
not by any court of law. As the debates in Congress 
are always printed, this privilege extends to their official 
publication. But it does not extend to their publica¬ 
tion in any other way. A member is free to speak a 
libel on the floor of the House to which he belongs, if 
the House allows it, and is not liable for its official 
publication. But if he or any one else publishes such 
a libel in any other form, it is not protected by this 
privilege. 





U 6, 2.] RESTRICTIONS ON MEMBERS. 63 

CLAUSE 2. 

RESTRICTIONS ON MEMBERS. 

So Senator or Representative shall, during the time for which he was 
elected, be appointed to any civil office under the authority of the United 
States, which shall have been created, or the emoluments whereof shall 
have been increased during such time; and no person holding any office 
under the United States, shall be a member of either House during hia 
continuance in office. 

I. What this clause does not prohibit. — This 
clause is remarkable rather for what it does not pro¬ 
hibit than for what it does. 

1. It does not prohibit an officer of the United States 
from being elected to Congress and holding his office 
till he is ready to take his seat in Congress. 

2. It does not prohibit a member of Congress from 
being appointed to a military office, which was created 
or the salary of which was increased for his special 
benefit. 

3. It does not prohibit a member of Congress being 
appointed as soon as his term is out to an office which 
was created, or the salary of which was increased for 
his benefit, perhaps only a few days before. 

4. It does not prevent a member of Congress securing 
the appointment of a relative or intimate friend to an 
office, which was created or the salary of which was in¬ 
creased for his benefit. 

5. It does not prohibit a member of Congress from 
resigning his seat at any time to take an office, which 
was not created or whose salary was not increased 
during his term of office. 

II. What this clause does prohibit. — It does 
guard against two sources of corruption. 

1. It prohibits any member of Congress getting a 


64 


POWERS OF MEMBERS. 


[I: 6, 2 . 


civil office created, or the salary of such an office in¬ 
creased, and then being appointed to it himself, before 
his term of office is out. 

2. It prohibits any one being at the same time a mem¬ 
ber of Congress, and an officer of the United States. 
A member of Congress is not an officer of the United 
States, but a representative of a State or of the people. 

III. Additional restrictions. — Besides these re¬ 
strictions, the following may be added: 

1. No Senator or Representative can be a Presidential 
Elector. (II, 2.) 

2. In all the States, the State Constitutions prohibit 
United States Senators and Representatives from hold¬ 
ing any State office, or being elected to the State Legis¬ 
latures. 


1: 7,1.] THE PROCESS OF MAKING LAWS. 


a 


SECTION 7 . 


THE PROCESS OF MAKING LAWS. 



L Bills Okiqi- 

NATS • •••••• 


r (a.) Revenue bills —in the Hons* of 

- Representatives. 

„ (b.) Other bills—in either House .... 


II. Bills Bkcoks 
Laws. 


(a.) With the President’s signature .. 

(b.) Over his veto. 

(c.) By his neglect to sign in ten days 
(d.) But an adjournment of Congress 
within ten days kills the bill.... 


III. Jonnr Resolutions— also need President’s concurrence 


I. M 
I.M 


I» T, * 
L T,« 

X.T,* 


CLAUSE L 

WHERE BILLS MAT ORIGINATE. 

JLB bills for raising revenue shall originate in the House of Representa¬ 
tives; but the Senate may propose or concur with amendments as an 
other bills. 

I. Bills which the house of representatives 
only can originate. — Most bills may originate in 
either the Senate or the House of Representatives; but 
revenue bills must originate in the House of Represent¬ 
atives. 

This provision is taken from the unwritten Constitution 
of England. There the House of Commons alone can 
originate money bills, and the House of Lords can only 
accept or reject them, but cannot propose amendments 
to them. Here the House of Representatives only can 
originate money bills; but the Senate has the right to 
propose amendments. The reason for requiring bills 
for raising taxes to originate in the House of Repre¬ 
sentatives, is because that body represents the people 

directly, and it is the people who are to pay the taxes. 

E 









66 


THE PROCESS OF MAKING LAWS. [Is 7, 2, 


II. Bills which either house may originate.— 
The Senate may, however, originate bills which raise 
revenue indirectly, so long as their main object is not 
to raise revenue. For instance, a law to levy a direct 
tax or a law to assess duties on certain imported goods 
must originate in the House of Representatives, but ‘ a 
law the violation of which was to be punished by fines 
to be paid into the treasury, or a law to regulate the 
sale of public lands, might originate in either House. 
Any bill which does not relate to raising revenue may 
originate in either House. 

CLAUSE 2. 

HOW BILLS MAY BECOME LAWS. 

Every bill which shall haye passed the House of Representatives and the 
Senate, shall, before it become a law, be presented to the President of 
the United States; if he approve, he shall sign it; but if not, he shall 
return It, with his objections, to that House in which it shall have 
originated, who shall enter the objections at large on their journal, and 
proceed to reconsider it. If, after such reconsideration, two-thirds of 
that House shall agree to pass the bill, it shall be sent, together with the 
objections, to the other House, by which It shall likewise be reconsid¬ 
ered, and if approved by two-thirds of that House, it shall become a law. 
But in all cases the votes of both Houses shall be determined by yeas 
and nays, and the names of the persons voting for and against the bill 
shall be entered on the journal of each House respectively. If any bill 
shall not be returned by the President within ten days (Sundays ex¬ 
cepted) after it shall have been presented to him, the same shall be a 
law, in like manner as if he had signed it, unless the Congress, by their 
adjournment, prevent its return, in which case it shall not be a law. 

L The different ways in which a bill may 
become a law. — There are three ways in which a bill 
may become a law: 

1. It may pass both Houses and be signed by the 
President. 

2. It may pass both Houses, be vetoed by the Presi¬ 
dent, and be passed over his veto by a two-thirds ma¬ 
jority of each House. 


i: 7, 2.] 


HOW BILLS MAY BECOME LAWS. 


67 


3. It may pass both. Houses, and the President may 
fail to sign it within ten days (when these are not at 
the close of the session). 

A bill becomes a law as soon as any one of these 
conditions is complied with. And it goes into operation 
as a law at once, unless it is expressly provided in the 
law that it shall go into operation at some future time. 

There are four ways in which a bill may be lost: 

1. It may not pass the Senate. 

2. It may not pass the House of Representatives. 

3. It may be vetoed by the President, and not passed 
over his veto by Congress. 

4. It may be retained by the President within ten 
days of the end of the session, without either his sig¬ 
nature or his veto. 

II. The president's veto. — The power of the 
President to reject a bill is generally called the veto 
power. 

The veto power of the President is derived from the 
veto power of the English sovereign. A king (or 
reigning queen) of England has an absolute veto, but 
the President has a limited veto. The veto of a bill by 
the king of England is final. The act cannot be re¬ 
versed by Parliament. But the President has a limited 
veto. A bill vetoed by him may become a law in spite 
of his veto, by a two-thirds vote of each House of 
Congress. But the absolute veto of the English sover¬ 
eign is rarely used, while the limited veto of the Presi¬ 
dent is frequently used. 1 

i The last veto by an English sovereign was by Queen Anne in 1707. It i« 
very unlikely that any English sovereign will ever again exercise that power, 
for reasons which the student of the English constitution will understand. 

Most of our Presidents have used the veto power, but always sparingly. 
President Johnson, in course of the struggle with Congress which culmi¬ 
nated in his impeachment, vetoed twenty-one bills, seventeen of which 
were passed by Congress over his veto. He also retained nineteen bills, 
which became laws without his signature. No other President vetoed mom 
than five bills, and several did not veto any. The veto power is one to b« 
rarely used, and only to prevent measures which are obviously very bad. 



68 


THE PROCESS OF MAKING LAWS. [1:7,8. 


III. Passage of a bill oveb the president’s 
veto. — When the President vetoes a bill, he sends it 
with his objections to the House in which the bill orig¬ 
inated. These objections are to be entered on the jour¬ 
nal of the House, so that there may be a permanent 
record of them in connection with the legislative action 
upon that bill. If the bill thus vetoed fails of a two- 
thirds majority in the House to which it is first sent, 
that is the end of it. But if it passes that House, then 
it is sent to the other House. If it fails of a two-thirds 
majority there, that is the end of it. But if the bill 
receives a two-thirds majority in that House also, it be¬ 
comes a law in spite of the President’s veto. The vote 
in each House on a vetoed bill must be by ayes and 
noes, and must be recorded in the journal, to make each 
member as responsible for his vote as the President is 
for his veto. 

IV. How A BILL MAT BECOME A LAW WITHOUT THE 
president’s signature or veto. — The time in which 
the President can consider a bill is limited to ten days, 
not counting Sundays. Otherwise, the President might 
embarrass legislation by holding bills indefinitely with¬ 
out signing or vetoing them. If the President fails to 
sign a bill within ten days (not counting Sundays), the 
bill becomes a law without his signature. 

V. Pocketing a bill. — The President has a veto 
power, which is practically that of an absolute veto, 
over those bills which are passed in the last ten days of 
the session. He can refuse either to sign or veto those 
bills, which kills them. This is called u pocketing ” a 
bill. 

When the President “ pockets ” a bill, Congress can 
do nothing about it, because it is not in session. But 
the same bill may be introduced as a new bill at the 


I: 7, 3.J 


JOfNT RESOLUTIONS. 


69 


next session. The larger part of all bills which pass 
Congress are passed in the closing days of a session; and 
therefore this power of the President is more important 
than it may seem at first. 

CLAUSE 3. 

JOINT RESOLUTIONS. 

Every order, resolution, or vote to which the concurrence of the Senate and 
House of Representatives may be necessary (except on a question of ad¬ 
journment), shall he presented to the President of the United States; and 
before the same shall take effect, shall be approved by him, or being 
disapproved by him, shall be repassed by two-thirds of the Senate and 
House of Representatives, according to the rules and limitations pre¬ 
scribed in the case of a bill. 

I. They must be submitted to the president. — 
Those resolutions, which are intended to have the effect 
of laws, need also the President’s signature, like bills. 
The mere fact that they are called resolutions instead of 
bills, does not change the method of their going into 
effect. Were it not for this provision, Congress might 
try to elude the President’s veto by passing an order or 
resolution, which should have the effect of law. The 
courts would probably decide that such action was un¬ 
constitutional, because an evasion of the President’s veto 
power. But this clause of the Constitution settles the 
question beyond controversy. 

But when a resolution is not intended to have the 
force of law, but only to express the opinion of one or 
both Houses, it does not need the President’s signature. 
This is obvious in the case of a resolution of either 
House alone. 

When both Houses together pass a resolution not in¬ 
tended to have the force of law, such a resolution is 
called a concurrent resolution , not & joint resolution , and 
it is not signed by the President. 


70 


HOW BILLS MAY BECOME LAWS. [I: 7, 3. 


II. CONGRESSIONAL ACTION WHICH NEED NOT BE SUB¬ 
MITTED TO THE PRESIDENT. 

Any action of one House alone or both Houses tog-ether, which 
does not have the effect of law, does not need to be submitted to the 
President. The following proceedings do not need the President’s 
signature, or a legal substitute for it: 

I. Any action of one House separately , such as, 

1. Anything affecting the organization of either House. These 
concern only that House, and are therefore determined by it alone, 
(a) Thus each House is the judge of the elections, qualifications and 
returns of its own members (Art. 1, Sec. 5, Clause 1). No other 
power can interfere with this right. Neither the President, nor the 
other House nor the courts have anything to do with this question. 
Each House can pass any orders, resolutions or votes upon any ques¬ 
tion as to who are lawfully entitled to sit as its members. The 
decision is final, whether right or wrong, and it can only be reversed 
by some other action of the same House. 

( b ) Each House can elect its own officers , except that the Vice 
President of the United States is President of the Senate (1,3, 4). 
This right belongs to each House by itself, and no other power can 
lawfully interfere with it. 

2. Any resolution expressing the opinion of one House. Any 
society, political convention, or public meeting may express its 
opinion by resolutions. And either House of Congress has the same 
right to express its opinions by resolutions. Such a resolution has 
no legal force, and does not require the assent of the other House 
or of the President. 

3. An impeachment by the House, or the trial of an impeach¬ 
ment by the Senate, or any orders or resolutions relating to them, 
do not need the President's signature. In this case the two Houses 
are not acting as legislative bodies, but as judicial bodies, the 
House of Representatives as a public prosecutor and the Senate as 
a court. As their actions in this case are not in the nature of laws, 
they do not need the President’s signature. 

II. Certain resolutions of both Houses, which do not have the 
effect of laws, do not need the President’s signature. 

1. A resolution proposing an amendment to the Constitution does 
not need the President’s signature. Such a resolution does not 
amend the Constitution, but only proposes an amendment It ii 
the action of the States, through legislatures or conventions, that 
actually amends the Constitution (see page 249). 


Is 7, 3.] 


JOINT RESOLUTIONS. 


T1 


2. A resolution which is in the nature of an agreement between 
the two Houses to do something, does not need the President’s sig¬ 
nature. Such a concurrent resolution has no binding force, except 
the honor of the two Houses. Each House still can do as it pleases. 
It is bound by no law. As such a resolution is not a law, it doe* 
not need the President’s signature. 

3. In brief, it may be said that any action of Congress which it 
in the nature of a law , must be submitted to the President for hia 
approval, and any action which is not in the nature of a law, does 
not need to be so submitted. 



Or CONGRESS. 


POWERS OP CONGRESS. 


n 


a#«. 


SECTION 8. 

POWERS OF CONGRESS. 

ANALYSIS OF THIS SECTION. 

idsxd other power* of Congrett granted in other parte of this Conetitvftom h 


' L OxmiL SrATBinraT.—All legislative powers granted 

by the Constitution are vested in Congress. 1.J 


< 


£ 




IL VlIiVOUL 
FOWXBS .... 


HL COKXIBOIit 
form.... 


r 1. To lay and collect taxes, duties 

and excises. I, 8,1 

2. To pay the debts of the U. 8. I, 8,1 

•< 8. To provide for the common defense 


and general welfare. I, 8,1 

4. To borrow money on the credit of 
L theU. S. 1,8,2 

r 1. To regulate foreign commerce .... I, 8, 8 

2. To regulate domestic commerce .. I, 8,1 

3. To establish uniform bankrupt 

laws. I, 8, 4 

4. To coin money. I, 8,1 

6. To regulate the value of foreign 

coins. 1*8,8 

8. To fix the standard of weights and 

measures. 1,8,5 

7. To provide for the punishment of 

counterfeiting. I, 8, 8 

8. To establish post offices and poet 

roads. 1*8,7 

9. To grant patents and copyrights.. I* 8, 8 

10. To prohibit the slave trade after 

1808. I, ft, 1 

11. To tax the slave trade before that 

date. 1*2*1 


V. 12. To allow States to levy duties..... I, 10,2 

























POWERS OF CONGRESS. 


1:8.] 


POWERS OF CONGRESS, 


73 


r 


IV. WABPoWEBS.. 


r 1. To declare war....... I» 8,11 

2. To send out privateers. I, 8, 11 

3. To make rules concerning captures 

on land or sea. I, 8, 11 

4. To raise and support armies. I, 8, 12 

5. To provide and maintain a navy.. I, 8, 13 

6. To make rules for the army and 

navy. I, 8, 14 

7. To provide for calling forth the 

J militia.. I, 8, 15 

] 8. To provide for organizing, arming 

and disciplining the militia. I, 8, 16 

9. To suspend the writ of Kabtas cor¬ 
pus in case of rebellion or inva¬ 
sion . I, 9, 2 

10. To allow States to keep armies and 

navies. I, 10, 3 

11. To allow States to make treaties or 

compacts. .. I, 10,8 


w 12. To allow States to engage in war.. I, 10, 3 


< 


V. POWERS RE¬ 
LATING TO 

Congress. 


r 1. To apportion Representatives, 

I, 2, 3, and Am. XIV 

2. To reduce the representation of 

States which abridge the num¬ 
ber of voters.Am. XIV, 2 

3. To regulate the elections for 

Senators and Representatives I, 4, 1 

4. To fix the time of the annual 

meeting. I, 4, 2 

5. Toadjourn. I, 6, 4 

6. To fix the salaries of Senators 

and Representatives. I, fl, 1 


VI. Powers re¬ 
lating TO 
THE PBESI- 
DENT • • • •• 


r 1. To fix the day of choosing Pres¬ 
idential electors, and of their 
meeting to choose a President 
2. To canvass the returns of a Pres¬ 
idential election. 

8. To determine what officer shall 
act as President, when there 
is no President or Vice Presi¬ 


dent . 

4. To fix the salary of the President 

and other executive officers.. 

5. To regulate the civil service.... 


II, 1, 4 
Am. XII 


II, l, « 

II, 1, 7 
II, 2, 2 


VII. Powers re¬ 
lating TO 
the Judi¬ 
ciary 


1. To fix the salaries of U. 8 . 

Judges. Ill, 1 

2. To regulate the appellate Juris¬ 

diction of the Supreme Com*, III, 2,1 




























POWERS OF CONGRESS, 


[1:8. 


r 


r 


VII. Powers re¬ 
lating TO ^ 
THE JUDI- 
CIAUT, con. 


8. To establish inferior court*, 

I, 8 , 0, and III, 1 

4. To fix the place of trials for 

crimes committed outside of 

any State.. Ill, 8, 8 

5. To declare the punishment of 

treason. . HI. 8,* 




VIII. Powers re¬ 
lating to 

THE JURIS¬ 
DICTION OF + 
THE U. S.. 


V. 


1. To define and punish piracies 

and felonies on the high seas, 

2. To define and punish offenses 

against the law of nations... 

3. To exercise exclusive legisla¬ 

tion in the District of Colum¬ 
bia . 

4. To exercise exclusive legisla¬ 

tion in forts, arsenals and 
dockyards . 

5. To govern the territory of the 

U. S. 


I, 8,10 
I, 8,10 

I, 8, IT 

I, 8, IT 
IV, 8,1 


< 


IX Powers re¬ 
lating TO 
the States \ 


1. To admit new States. 

2. To guarantee to every State a 

republican form of govern¬ 
ment. . 

3. To prescribe the manner of 

proving the public records of 
one State in another State.... 

4. To allow States to collect duties, 

5. To allow States to keep armies 

and navies, make treaties and 
engage in war. ... 

6. To submit proposed amend¬ 

ments to the States. 


IT, 8,1 


IT, 4 


IV, 1 

I. 10,1 


I* 10.1 

▼ 


X Ml SO ELL A- 
NEOUBPOW¬ 
ERS . 


V* 


1. To allow U. S. officers to accept 

presents or titles from foreign 

powers. I, • 

2. To remove rebel disabilities.... Am. XIV, 8 

3. To enforce the provisions of 

Ain’s XIII, XIV and XV. 






XI. General 

POWERS.... 


V. 


1. To make all laws needed to 

make these powers effective. 

2. To make all laws needed to 

carry into effect all other 
powers vested in any part of 
the government. 


1.8,11 

1.8. M 


























L: 5.J 


POWERS OF CONGRESS. 


75 




SECTION 8. 

POWERS OE CONGRESS. 

I. The powers of congress are legislative 

POWERS. 

Thus far this Article has treated of the organization of Congress. 
This section and the next treats of the legislation of Congress. 
Congress is the law-making power of the government, and any 
laws which the Federal government is authorized to make, may be 
made by Congress. The United States government can only make 
laws through Congress. And therefore the powers of law-making 
given in this section are expressly given to Congress, and the 
restrictions upon legislation by the United States, are expressly 
imposed upon Congress, as the legislative department of the gov¬ 
ernment. 

The powers of Congress are all legislative powers. Congress has 
all the legislative power of the Federal government, except as lim¬ 
ited by the President's veto, and has no powers except legislative 
powers. 

II. C/ON CURRENT POWERS OF STATE LEGISLATURES. 

The States can make laws on those subjects given in this section 

or elsewhere, on which Congress can make laws, with these two 
B.xceptions: 1. States cannot legislate on subjects forbidden them by 
this Constitution. 2. State laws must give way to United States 
lavi r 8 on all other subjects. 

III. These legislative powers are subject to 
CHE’ president’s VETO. 

As these powers are all powers to make laws, they are of course 
<ubj ct to the President’s veto, as explained in the last section. 
L'here are some things Congress can do without the President, but 
nothing in the way of legislation. 




TO POWERS OF CONGRESS. [1:8,1. 

CLAUSE 1. 

TAXATION. 

Th« Congress shall have power to lay and collect taxes, duties, Imposts 
and excises, to pay the debts and provide for the common defense and 
general welfare of the United States; but all duties, imposts and excises 
shall be uniform throughout the United States. 

I. The power of taxation inherent in govern¬ 
ment. — Taxation of some kind is necessary to all gov¬ 
ernment. The labor of government, like all other labor, 
is expensive, and sometimes is very expensive. In war, 
especially, the expenses of government become enor¬ 
mous. 

All governments exercise the power of taxation as a 
necessary part of their sovereignty. And if this Con¬ 
stitution had not expressly given this power, it still 
would have been implied in the fact of a government. 

Under the Articles of Confederation the sovereignty 
was in the several States, and therefore the power of 
taxation was left to each State separately. The United 
States was not a nation, but a confederation of nations. 
Congress under the Confederation was not the legisla¬ 
tive department of a national government, but an 
assembly of delegates from allied governments, to con¬ 
sult together for the common good. They could not 
tax, but they could ask the States to tax, and the States 
could tax or not as they pleased. 

But this Constitution made us a nation, with a na¬ 
tional government. For that government the power 
of taxation is necessary, and is given in this clause. 

II. The power of taxation resides in the repre¬ 
sentatives of the people. — In despotic or aristo¬ 
cratic governments the power of taxation is not in the 
hands of those who pay taxes. But in republics or 



1:8, 1.] 


TAXATION. 


77 


limited monarchies the people, or their representatives, 
have the power of taxation. When those who pay the 
taxes themselves levy them, taxes are more justly col¬ 
lected and more wisely used. There is no power of the 
government which the people watch more closely than 
the power of raising and expending the public funds. 


III. The states may also levy taxes. — The fact 
that the United States exercises the right of taxation, 
does not preclude the States from also levying taxes, 
nor does it forbid them authorizing cities, counties, 
towns, villages and school districts from levying taxes 
for their own purposes. But no State may levy duties 
on imports or exports for its own revenue. (Section 10.) 

IV. Methods of taxation. — The following analy¬ 
sis gives all the methods of taxation named in the 
Constitution: 


’ Direct 


Property tax. 
Poll tax. 


TAXES.. - 


Duties. 


Indirect 


Imposts. 


. Excises. 


Taxes are direct or indirect; direct taxes are those 
which are paid directly by the tax payer to the govern¬ 
ment; indirect taxes are those which are paid directly 
by the merchant or manufacturer on his goods, but 
which are paid indirectly by those who buy those goods. 
Indirect taxes are easier for the government to collect, 
because people do not stop to think how much goes to 
the government of what they pay for goods. 

For this reason the United States government has 
used indirect taxation almost entirely. 

V. Direct taxes. — The Constitution provides that 
direct taxes shall be laid upon the States according to 






78 


POWERS OF CONGRESS. 


[I: 8, i. 


their representative population (see I, 2, 3, and I, 9, 4). 
This was one of the compromises between the Northern 
and Southern States. The representative population is 
now, since slavery has been abolished, the same as the 
actual population, excluding uncivilized Indians. Only 
five direct taxes have been collected by the Federal gov¬ 
ernment— in 1798, 1813, 1815, 1816, and 1862. But 
the States raise most of their taxes by direct taxation. 

Direct taxes may be upon property or upon persons. Direct 
taxes upon property are levied by taking a certain per cent, of the 
assessed valuation of the property taxed. But when a direct prop¬ 
erty tax is levied by the United States, the per cent, will vary in 
the ratio of the population to the wealth of the several States. The 
amount to be raised is apportioned among the States according to 
their population, but within each State it will be apportioned 
according to property. The effect of this is to tax the property of 
the newer and poorer States, more than that of the older and 
richer ones. If the government raised many direct taxes, this 
would be an injustice to be redressed. 

The Supreme Court has decided that an income tax, although 
paid directly by the tax payer, is not a direct tax within the meaning 
of the Constitution. (I, 2, 3.) 

A direct tax upon persons is called a poll tax or capitation tax. 
In that case, each person liable to the tax is called on to pay an 
equal amount. 

VI. Duties. — A duty is a tax on the importation 
or exportation of goods. Export duties are probably 
forbidden by the Constitution (I, 9, 5). Duties on im¬ 
ports are ( a ) specific duties or ( b) ad valorem duties. A 
specific duty is one upon the weight or measure of 
goods; an ad valorem duty is one upon their value. 

VII. The tariff question. 

The rate of duties is called a tariff. A prohibitory tariff is one 
which puts the duties on one or more articles so high that it does 
not pay to import them. A protective tariff is one high enough to 
make it profitable to manufacture or raise in this country article* 


l: 8, 1.] 


TAXATION. 


79 


thus protected. A revenue tariff is one high enough and yet not too 
high to yield a good revenue to the government. Free trade exist* 
where there is no tariff. 

Ihe tariff question has been one of the great political questions 
on which parties have divided; and it is likely to be a prominent 
political issue for many years to come. No party wishes free trade, 
and none wishes a prohibitory tariff. The contest is between a high 
protective tariff and a revenue tariff. On this question people gen¬ 
erally divide according to their real or supposed interests. As a 
rule, the agricultural sections of the country favor a revenue tariff^ 
the manufacturing sections a protective tariff, and the commercial 
centers stand neutral. 

The collection of duties is in charge of the Bureau of Customs, 
which is a part of the Treasury Department. Duties are collected 
at the custom houses located at the various ports of entry , by officers 
called custom house officers. 

# 

VIII. Internal revenues. — The word imposts is 
used vaguely in the Constitution for any kind of indi¬ 
rect tax, and is intended to cover any indirect tax that 
any one could claim is not covered by the words duties 
and excises . 

Excises are taxes levied on person who manufacture, 
or articles manufactured, in this country. The chief 
sources of revenue now from excises is the tax on liq¬ 
uors and tobacco, and the licenses required for carrying 
m certain kinds of business. 

All these kinds of indirect taxes are called now inter¬ 
nal revenue. Their collection is in the charge of the 
Bureau of Internal Revenue, which is a part of the 
Treasury Department. 

IX. Uniformity of taxation. —Indirect taxes 
must be the same throughout the country. It is plain 
that this is the only fair way of taxation. Direct taxes, 
as we have seen, are not uniform throughout the coun¬ 
try. But the indirect taxes, from which the United 
States gets most of its revenue, are uniform. The same 


80 


POWERS OF CONGRESS. 




[I: 8, 3L 


duties are charged at one port of entry as at another, 
and the same excises are charged in one State as another. 

X. The objects of taxation. — This section limits 
the power of Congress to tax the people to these three 
objects: (a) to pay the debts of the United States, (6) 
to provide for the common defense, and (c) to provide 
for the general welfare. Congress has no right to tax 
the people except for these three objects, and only 
enough to accomplish these objects. The general wel¬ 
fare is a vague expression, which allows a wide margin 
for the discretion of Congress as to what things aro 
needed for the general welfare. But the public money 
cannot lawfully be squandered as it is in monarchies for 
the luxury and pride of a king and his court. It can¬ 
not be expended for the sole benefit of one State to the 
exclusion of the rest. It cannot be used for any thing 
that obviously does not provide for the common defense 
or for the general welfare. 


CLAUSE 2. 

THE POWER TO BORROW. 

To borrow money on the credit of the United State*. 

I. The public debt. — This clause gives Congress 
the power to borrow. No other department of the gov¬ 
ernment can borrow money except as authorized by law 
to do so. Sometimes in times of great emergency dur¬ 
ing war, the Secretary of the Treasury has borrowed 
money; but these acts were unlawful, and were only 
made lawful by a law passed afterwards. 

In time of peace, the regular revenues ought to pay 
all expenses of the government. But no taxation which 
the people could afford to pay would be enough to carry 





1:8, 2.J 


THE TOWER TO BORROW. 


81 


on a great war without borrowing money. During the 
Civil War the expenses of the government were over 
two million dollars a day. A large part of this neces¬ 
sarily had to be borrowed. 

II. Classification of the public debt. 

The debt of the United States is in three forms: (a) bonds; (6) 
treasury notes; (c) floating debt. 

The greater part of the debt is in bonds. Of these there are two 
kinds, registered bonds and coupon bonds. The registered bonds 
are called so because a register of each bond is kept in the United 
States Treasury, with the name and residence of the holder of the 
bond. It is thus safe against thieves, because no one except the 
person who owns it can collect it or the interest on it from the gov¬ 
ernment. If the holder of such a bond wishes to sell it, he must 
give notice to the proper officers at Washington, and have the bond 
transferred on the books to the person to whom he sells it. 

The coupon bonds are not thus registered at Washington, and 
thus are as liable to be stolen as any other property. They are 
named from the coupons or little slips of paper attached to them, 
each of which represents the interest on that bond for six months. 
As these become due, they may be cut off and sold at any broker’s 
office or bank. The government will pay the bonds or coupons, 
when they are due, to any person who presents them. The gov¬ 
ernment bonds that are now outstanding nearly i.-ll bear interest at 
the rate of four, four and a half, or five per cent., payable semi¬ 
annually. 

Treasury notes, commonly called “greenbacks,” are promises to 
pay money. These circulated from 1862 till 1879 without being 
redeemed by the government, and consequently at a discount. As 
they are now redeemed on demand in gold and silver, they are 
equal in value to money. (See page 92.) 

The floating debt consists of salaries due, interest accruing, bills 
of contractors not yet paid, and the like. This debt is never very 
large, and is kept paid up as promptly as possible. 

III. Payment of the debt. 

The public debt is being gradually paid up, and that much faster 
than the public debt of other nations. Because of this, the credit of 
the United States is as good as that of any nation in the world ex- 
v 


POWERS OF CONGRESS. 


[ 1 : 8 , 8 . 


82 

cept England, and we are able to borrow money at low rates of 
interest. As the national debt is constantly being reduced, it is 
not worth while to give it here. By watching the newspapers early 
in January and July each year, the semi-annual statement of the 
debt can be found for that date. 

CLAUSE 3. 

THE POWER OYER COMMERCE. 

To regulate commerce with foreign nations, and among the several States, 

and with the Indian tribes. 

I. Previous history. — Before the Revolution, 
Great Britain regulated the commerce of the colonies 
with each other, with the home country and with the 
rest of the world. During the war and until this Con¬ 
stitution was adopted, each State regulated its own 
commerce in its own way. Each State tried to favor 
its own commerce at the expense of the rest, and the 
result was that the commerce of all was hampered, and 
local jealousies were greatly increased. If this power 
of regulating commerce had not been given to the 
general government, there can be little doubt that these 
commercial rivalries would have broken up the Union 
eventually. It was wise, therefore, to give the power of 
regulating commerce to Congress. 

II. State powers oe regulating commerce.— 
The States have no power over the subject of commerce 
except, 

1. Commerce within the State; or 

2. Such duties on commerce as Congress may allow 
(I, 10, 2 and 3), and these must be uniform in all the 
States (I, 9, 6); or 

3. By inspection laws. 

The States have no power over commerce within their 




1:8, 3.] 


THE POWER OVER COMMERCE. 


83 


boundaries, except that which is wholly within their 
boundaries. For instance, commerce on the Erie 
canal is wholly within the State of New York, and the 
New York legislature and not Congress is the proper 
body to deal with it. But the Hudson river is partly 
in New York and partly in New Jersey, and the two 
bodies have each jurisdiction on that river. Commerce 
between New York and Albany on that river is in the 
jurisdiction of the State of New York. But commerce 
between New York and Jersey City is under the juris¬ 
diction of the United States. 

Inspection laws are intended to prevent frauds in the 
sale of goods. Inspectors are appointed in many States 
who inspect goods offered for sale, and see that they 
are of the proper weight or measure and of the right 
quality. These inspectors are generally paid by fees, 
which, of course, are really the same as duties on the 
goods inspected. A State might, under the name of 
inspection fees, impose heavy duties on goods coming 
from other States or countries. To prevent this, the 
Constitution (I, 10, 2) provides (a) that the net produce 
of such imposts shall be paid into the United States 
treasury, and ( b ) that inspection laws shall always be 
subject to the revision of Congress. 

III. Commerce with foreign hatiohs. — Congress 
has power to regulate commerce with foreign nations. 
But Congress has not power to prohibit commerce for 
any length of time. One Congress laid an embargo on 
all foreign commerce, forbidding it as a reprisal for the 
action of European powers. The measure aroused 
bitter political feeling, and was repealed in a little over 
a year. It is not likely that any such embargo will 
ever be laid on our commerce again. Congress has the 
right to so regulate foreign commerce as to raise a 


$4 


POWERS OP CONGRESS. 


[1:8, 3* 


revenue from it, or to favor our own commerce or man¬ 
ufactures, or to retaliate injuries or reciprocate benefits 
derived from the commercial laws of other nations, and 
the right to regulate commerce has been used in all th-se 
ways. 1 

There is one way in which foreign commerce may be 
regulated without an act of Congress. A treaty made 
by the President and confirmed by the Senate, may 
regulate commerce between the United States and the 
power with which the treaty is made. Such a treaty 
annuls any act of Congress in conflict with it, and can¬ 
not be repealed by act of Congress (see page 254). Such 
commercial treaties are a part of the supreme law of 
the land, and are superior to any act of Congress. 

IV. Commerce between the states. — Congress 
has power to regulate commerce among the several 
States. In the exercise of this power, Congress has 
wisely made all commerce within the United States free. 
A merchant can travel from State to State without be¬ 
ing stopped by vexatious duties at the border of each 
State. Freight and passengers are carried past State 
boundaries without hindrance. For all the purposes of 
commerce this great territory is a unit. The only reg¬ 
ulations that have been prescribed are such as are needed 
for the safety of ships and steamboats. 

Railroads have thus far been left under the control of 
the several States, but there is no doubt that Congress 
could control the whole subject of railroads, if it chose. 
The only possible exception would be in the case of 
those railroads which are wholly within one State. 

»“In the practice of the government, the commercial power has been 
applied to embargoes, non-intercourse, non-importation, coasting trade, 
fisheries, navigation, seamen, privileges of American and foreign ships, 
quarantine, pilotage, wrecks, light-houses, buoys, beacons; obstructions in 
bays, sounds, rivers and creeks; inroads of the ocean, and many other 
kindred subjects; and doubtless, includes salvage, policies of insurance, 
bills of exchange, and till maritime contracts, apd the designation of pert# 
of entry and delivery.” — Farrar's Manual of the Constitution, p. 228. 






1:8, 4.J NATURALIZATION AND BANKRUPTCY. 85 

The control of these would perhaps be still in the hands 
of the State in which they are. 

V. Commerce with the Indian tribes. — Con¬ 
gress has sole control of commerce with the Indian 
tribes. These tribes are not foreign nations, nor are 
they composed of citizens. They are subject peoples 1 II. ; 
and as such they are under the control of the Federal 
government. Commerce, like all other relations with' 
them, is under the control of the general government. 
Even if one of these tribes is located within the boun¬ 
daries of a State, the State has nothing to do with it. 
The United States alone controls all relations with it 

CLAUSE 4. . 

NATURALIZATION AND BANKRUPTCY. 

establish an uniform rule of naturalization, and uniform laws on the 
subject of bankruptcies throughout the United States. 

I. Reason for this clause. — Naturalization is 
the process by which a foreigner becomes a citizen. 
The power of naturalization is one of the attributes of 
sovereignty. As long as the States were held to be sov¬ 
ereign, it was proper that they should have the power 
of naturalization, as they did under the Articles of 
Confederation. But when this Constitution was framed 
to make us one nation, this power of naturalization was 
taken from the State legislatures and given to Congress. 
Some practical abuses had arisen from the States re¬ 
quiring different times of residence. A foreigner who 
thought the time required in one State too long, had 
only to move to a neighboring State to be naturalized 
in a much shorter time. It was, therefore, provided 
that the rule of naturalization should be uniform. 

II. What is citizenship. — A citizen is a member 


86 


POWERS OF CONGRESS. 




of the body politic. All the citizens together make up 
the nation. All persons who are not citizens are aliens. 

A common mistake is to suppose that citizens are the 
same as voters. As a fact, most citizens are not voters, 
and not all voters are citizens. Women and children 
are not voters, but are citizens, if otherwise qualified. 
And in several States men can vote who are not citizens 
of the United States, but who have only declared their 
intention to become citizens. The student should care¬ 
fully distinguish between citizens and voters. 

III. Who are citizens. — By the Fourteenth 
Amendment citizenship is defined thus: 

w All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside.” 

The phrase, “ and subject to the jurisdiction thereof,” 
was meant to shut out from citizenship those Indians 
who obey their tribal customs, iostead of the laws of 
the United States. 

Those Indians who, by permission of Congress, have 
left their tribes, and are subject to the United States 
laws, are citizens. 

There are thus two ways in which any one may 
become a citizen: 

1. By birthright. 

2. By naturalization. 

A nation is like a family in this respect, for there are 
two ways in which a person may become a member of 
a given family — by birthright and adoption. Natural¬ 
ization makes any one a citizen of a given nation in 
the same way in which adoption makes any one a mem¬ 
ber of a given family. Citizens of the United States, 
then, may be either natural born citizens or naturalized 
citizens. 


i: 8, 4.] NATURALIZATION AND BANKRUPTCY. 


87 


IY. Natural-born citizens. — This phrase is used 
in Article II, section 1, where it is provided that the 
President of the United States shall be a natural-born 
citizen. A natural-born citizen is not necessarily a 
native of the United States. Members of Indian tribes 
are natives, but are not natural-bom citizens. And there 
are some natural-born citizens who are not natives of 
the United States, but were born in other countries. 
There are two conditions required to make a natural-born 
citizen — parentage and place of birth. A child born 
of American parents in any place under American j ur- 
isdiction is unquestionably a natural-born American 
citizen. But where the parentage and birthplace do not 
agree, there is a case of doubtful citizenship which is 
decided by the choice of the person himself, when he 
comes to years of manhood. 

Any person born of an American father, in a place 
subject to the jurisdiction of a foreign nation, may be 
a natural-born American citizen, if he claims that priv¬ 
ilege when he arrives at the proper age. So, also, any 
person born of a foreign father in any place subject t* 
the jurisdiction of the United States, may be a natural- 
born American citizen, if he choose. In these doubtful 
cases the person may choose the country of his father 
or the country of his birth. So that a person may be a 
natural-born citizen of the United States, without being 
a native of the United States. 

The places outside the United States which are sub¬ 
ject to the jurisdiction of the United States, axe 
(a) United States men-of-war anywhere. (6) Ships 
bearing the American flag, while on the high seas, but 
not in a foreign port, (c) Places purchased for naval 
stations, (d) The houses in which American ambassa¬ 
dors in foreign lands reside. This extends also to the 


88 


POWERS OF CONGRESS. 


[1:8, 4. 


persons and families of tliese ambassadors and their sub¬ 
ordinate officers. So that a child born to any" of them 
in a foreign country is considered to be born under the 
jurisdiction of this country (see also page 211). This ex¬ 
tends to consuls in heathen or Mohammedan lands, but 
not to consuls in Christian lands. 

So also the children of foreign ambassadors or their 
subordinates bom in this country are not natural-born 
citizens. 

V. Natubalized citizens. — Persons have been 
naturalized in each of the following ways: 

1. Under the naturalization law of the United States . 
For this, two steps are necessary: 

(a) The foreigner who wishes to be naturalized must 
“declare his intention to become a citizen of the United 
States.” He can do this at any time after coming to 
this country, the very day he lands if he pleases. It 
must be before the Clerk of some United States or State 
court, who gives him a certificate, which is popularly 
called his “first papers.” 

This declaration of intention is the first step to citi¬ 
zenship, and entitles the person taking it to certain 
privileges. It entitles him to protection in foreign 
countries. It entitles him to take up a homestead of 
160 acres of land. It entitles him in several States to 
vote, if otherwise qualified, and to hold most offices. 

(b) But in order to become a full citizen, he must 
take another step, which can only be done during a 
term of some United States or State court, and in open 
court. Before taking this step, he must have resided in 
the United States five years, and it must be at least two 
years after he took out his first papers, and he must 
have sustained a good moral character during that 
time, and been “ attached to the Constitution of the 




i: 8, 4.] NATURALIZATION AND BANKRUPTCY. 


8b 

United States, and well disposed to tlie good order and 
happiness of the same.” 1 

All this having been satisfactorily proved, he re¬ 
nounces all allegiance to any foreign power, and swears 
allegiance to the United States, and receives a certificate 
of naturalization. This completes his naturalization, 
and is popularly called u taking out his second papers.” 
He is thus entitled to all the privileges of a citizen, 
except being elected President or Vice President. 

2. By treaty or annexation. When the United States 
annexed Texas, the citizens of that commonwealth were 
made citizens of the United States, by the act of annex¬ 
ation, by Avliich Texas was made a State in the Union. 
The same was the case with every addition of territory 
made by treaty with France or Spain. Their free in¬ 
habitants, except wild Indians, became citizens at once 

3. Members of Indian tribes may be msde citizens by 
act of Congress, on leaving their tribal relations and 
coming under the jurisdiction of the United Spates. 

4. Slaves are not citizens. When the slaves in. the 
South were freed, as the result of our civil war, tho act 
that made them freemen made them citizens. But to 
make assurance doubly sure, the Fourteenth Amend¬ 
ment was passed, which made them citizens, if they 
were not already. 

VI. Naturalization of women and children.— 
Women and children may be naturalized in the follow¬ 
ing manner: 1. When a man is naturalized in any of 
the ways named above; it naturalizes his family also. 
The family which is naturalized consists of his wife and 
bis children who are under twenty-one years old, but 
not of other persons who may be living in the family. 


'Daring our civil war, some special privileges in regard to naturalization 
were given to foreigners who enlisted in our army. These are omitted at 
of no importance now. 




90 


POWERS OF CONGRESS. 


[I: 8, 4. 


If a foreigner has declared his intention to become a 
citizen and dies before becoming a citizen, his widow 
and minor children may go on with the naturalization 
at the proper time, in his place. 

2. If a foreigner comes to this country when he is 
under eighteen years of age, and resides here five years, 
he may take out his first and second papers at the same 
time, but he must be at least twenty-one, and must have 
resided here five years, when he is thus naturalized. 

3. A woman who is over twenty-one, and who is not 
married at the time, may be naturalized on the same 
conditions and in the same way as a man. Several 
women have been thus naturalized in order to take up 
and acquire titles to homesteads. 

4. A woman not a citizen becomes a citizen on mar¬ 
rying a citizen. 

VII. Bankruptcy. — A person who is unable to 
pay his debts is an insolvent person. A bankrupt is an 
insolvent person, who has been declared to be such by 
the proper legal authority. A bankrupt law is a law 
under which an insolvent person may give up to his 
creditors voluntarily, or be compelled by them to give 
up, all his property which is liable for debt, and may 
then be freed from the rest of his debts. The objects 
of such a law are to divide the property of a bankrupt 
fairly among all his creditors as far as it goes, and to 
give the bankrupt a chance to begin business again, 
free from his old debts. 

Congress has power to pass a uniform bankruptcy law. 
It must be uniform; that is, it must apply alike to all 
parts of the United States. As long as Congress does 
not exercise this power, the States have the right to 
pass such laws; but when the United States has a bank¬ 
rupt law, it supersedes all State laws upon the subject. 



i *, 5.] COINAGE, WEIGHTS AND MEASURES. 


91 


the States have the right to pass such laws; but when 
the United States has such a law, it supersedes all State 
bankrupt laws, and this law is executed by United 
States courts and officers. State laws on this subject 
are often called insolvency laws. 

CLAUSE 5. 

COINAGE AND WEIGHTS AND MEASURES. 

To coin money, regulate the value thereof, and of foreign coin, and lx the 

Btandard of weights and measures. 

I. The power of coinage. — The power to coin 
money is an attribute of sovereignty, and naturally be¬ 
longs to the United States as a sovereign power. The 
States have no right to coin money (I, 10, 1). Much 
less have cities, counties, or villages, or private individ¬ 
uals or corporations. Only the United States can coin 
money, and then only by act of Congress. No officer 
of the United States can coin money except as author¬ 
ized to do so by act of Congress. 

II. United States money. — Money is coined in 
the United States in the mints at Philadelphia, San 
Francisco, Carson and Denver. The three latter places 
have been made mints because they are in the gold and 
silver districts of California, Nevada and Colorado. 

Money has been coined from gold, silver, copper and 
nickel. The gold coins of the United States are now 
the dollar piece, the quarter eagle or two and a half dol¬ 
lar piece, the three dollar piece, the half eagle or five 
dollar piece, the eagle or ten dollar piece, and the 
double eagle or twenty dollar piece. The silver coins 
of the United States are now the trade dollar, the dol¬ 
lar, the half dollar, the quarter dollar, and the dime. 
The minor coins are made of copper or nickel, and are 


POWERS OF CONGRESS. 


92 


[I: 8, 5. 


a five cent piece, a three cent piece, a two cent piece 
and a one cent piece. 

III. Treasury notes and bank bills. — Some 
persons claim that treasury notes, or “ greenbacks 1 ’ are 
money. In popular language they are often called 
money, but in reality they are only promises to pay 
money. The government has the right to issue them, 
and perhaps also to make them a legal tender for debts, 
so that they circulate the same as money; but that does 
not make them money. They are the same as bank notes, 
except that it is the government and not a private bank 
which issues them. If the student will read the words 
printed on one of the greenbacks, he will see that they 
do not profess to be money, but only promises to pay, 
or u bills of credit ” (I, 10, 1). The currencij of a 
country is composed of everything that circulates as 
money, and is received in payment of debts in ordinary 
business transactions. In this country the currency is 
composed of (a) coin, ( b ) treasury notes, (c) bank 
notes, ( d) bank drafts and bills of exchange, ( e ) checks 
drawn by individuals on banks where they have deposits. 
Treasury notes are thus a part of the currency, but are 
not money. 

IV. Foreign coins. — Congress has regulated the 
value of foreign coins, so far as the rate at which they 
shall be taken for taxes and duties. But there is now 
no law attempting to regulate the value of foreign coins 
in the payment of debts. People may take foreign 
coins in business dealings, if they choose, but they are 
not obliged to by law. 

V. The standard of weights and measures. — 
Congress has never exercised the power to fix the stand¬ 
ard of weights and measures, but has left the subject to 
the State legislatures. This standard, however, is, with 



I: 8, 7.] POST OFFICES AND POST ROADS. 


93 


slight exceptions, the same in all the States, so that we 
have the advantages of uniformity. 

Congress has adopted a standard of weights to be 
used in the mints in coining money, but has not re¬ 
quired this to be used elsewhere. 

« 

Co ngress has also enacted that the metric system of 
weights and measures shall be lawful but not obliga¬ 
tory. The object of this is to make people familiar 
with this system, which will probably sometime be 
adopted by all civilized nations, so as make all weights 
and measures throughout the world the same. 

CLAUSE 6. 

COUNTERFEITING. 

To provide for the punishment of counterfeiting the securities and current 

coin of the United States. 

Under the power conferred by this clause, the United 
States punishes the counterfeiting of its coins, bonds, 
notes, stamps, and other securities. The punishment is 
by fine and imprisonment in various degrees. 

CLAUSE 7. 

POST OFFICES AND POST ROADS. 

To establish post offices and post roads. 

I. Value of the post office. — This is the power 
of the general government which most concerns the 
daily life of our citizens. Every time we receive or 
send a letter, or postal card, or newspaper, we touch the 
machinery of the United States government. We thus 
have friendly and business intercourse with distant peo¬ 
ple, or get periodical literature far cheaper and more 
certainly than we should be able to if the government 


94 


POWERS OF CONGRESS. 


[I: 8, 7. 


did not manage the post office. For one cent we can 
send a short note to any person in the United States; 
for two cents we can send a long letter. It is plain 
that for the States to have each its own postal system 
would lead to endless confusion and delay. The power 
over post offices and post roads is therefore given, by 
this clause, to the United States. 

II. Management of the post offices. 

The Postmaster General has general charge of the postal busi¬ 
ness of the United States. Besides the assistants and clerks re¬ 
quired in the Department at Washington, there are many thousand 
persons constantly employed in the postal service of the United 
States. In every city and village of the United States, and in 
some country places far from towns, post offices are established, 
each in charge of a postmaster, with as many assistants as he may 
need. Of the postmasters, about 1,600 holding the most important 
offices, in which the pay is one thousand doliars or more, are ap¬ 
pointed by the President, with the consent of the Senate. The 
rest, over 60,000 in number, are appointed by the Postmaster Gen¬ 
eral. 

In addition to these, every considerable railroad has a system of 
mail cars, which are really traveling post offices, which receive and 
distribute mail as the train passes from one end of the railroad to 
the other. By this, all the delay of sorting out mail at distributing 
post offices is saved, and a letter now travels as quickly to its des¬ 
tination as a passenger does. 

In cities of sufficient population, the mail is carried to people’s 
doors by carriers, and no one is obliged to go to the post office for 
his mail, if he has it directed to his street and number. 

III. The post office as a bank. 

There is danger in sending money through the mail, that it may 
be stolen by some one of the many persons who handle each letter. 
One way of guarding against this is by registering a letter contain¬ 
ing money or valuables. For a small fee the letter is registered, 
and its progress traced till it reaches the person to whom it is sent. 

But a better method of sending money is by money orders. A 
money order is the same as a draft of one bank on another; only in 
this case it is the draft of one postmaster on another. The fee i* 


1: 8, 8.] 


COPYRIGHTS AND PATENTS. 


95 


small, and there is no risk in sending money in this way. But the 
government will not take great risks; it sells no money order over 
fifty dollars. For a larger sum than this one should go to a bank 
for a draft 

IY. Foreign - postage. 

By postal treaties with other countries we now have mail com¬ 
munication with all civilized nations. A letter can be mailed at 
any post office in the United States to almost any part of the world, 
and a money order can now be bought at a money order office in 
the United States to Canada and to many parts of Europe. 

Y. Post roads. —Congress has authority to establish 
post roads. Generally it has simply used roads already 
established by the States. But it has established some 
highways and railroads under the authority of this sec¬ 
tion. The principal highway thus established, was the 
Cumberland road from the Potomac to the Ohio river, 
and the principal railroads thus established are the Union 
and Central Pacific, together making one line, and the 
Southern Pacific and the Northern Pacific Railroads. 
These roads were none of them built by the United 
States directly, but by incorporated companies, which 
were assisted by the United States with money and 
bonds. They were built under the authority and with 
the assistance of the United States, as post roads and 
military roads. 


CLAUSE 8. 

COPYRIGHTS AND PATENTS. 

To promote tbe progress of science and useful arts, by securing for limited 
times to authors and inventors the exclusive right to their respective 
writings and discoveries. 

I Copyrights. — A copyright secures to an author 

the exclusive right to publish and sell his writings. 

The progress of science and literature i3 greatly pro¬ 
moted by giving this privilege to authors. Most peopre 



96 • 


POWERS OE CONGRESS. 


LI: 8, 8. 


cannot afford to write merely for fame, and unless tliey 
can be at least paid for tlieir time, they cannot write 
much. A copyright law, by giving them the control 
of their writings, is an encouragement to authors. 

The United States copyright law has created an 
American literature since this Constitution was adopted. 
A large part of this literature would never have been 
written, if there had been no United States copyright law. 

A copyright is given for twenty-eight years, and can 
be renewed for fourteen years more. It may be sold or 
inherited, like other property. This book is copy¬ 
righted; see the next page after the title page. 

II. Patents. — A patent secures to an inventor the 
exclusive right to manufacture and sell anew inven¬ 
tion. The liberal patent laws of the United States have 
encouraged very greatly the progress of the useful arts. 
The natural ingenuity of the American people has been 
so stimulated by the rewards of successful inventors, 
that the United States to-day leads the world in the 
manufacture of labor-saving machinery. At every 
World’s Fair, American inventions and manufactures 
take a large share of the prizes in this line. Among 
the important inventions of Americans, are the tele¬ 
graph, the steamboat, the cotton gin, the sewing ma¬ 
chine, the reaper, the threshing machine, the sleeping 
car, the telephone, the phonograph. 

Besides these great inventions, thousands of lesser 
ones, and thousands of improvements upon machines 
invented elsewhere, help to show the inventiveness of 
the American mind, and the value of our patent laws. 

A caveat is given for one year to any inventor who 
wishes to secure his invention, but who needs time to 
perfect it before patenting. A patent is given only to 
inventions really new, or to improvements on old in- 



I: 8, 9.] 


UNITED STATES COURTS. 


97 


ventions. A patent is given for seventeen years, and 
may be extended for seven years more by the patent 
office. Congress by special law has sometimes ex¬ 
tended the term of certain patents still further. 1 

Patents may be sold or inherited, like other property. 
Every article which is patented must have the word 
‘‘patented,’ 1 with the date of the patent, affixed to it in 
some way. 

CLAUSE 9. 

UNITED STATES COURTS. 

To constitute tribunals inferior to the Supreme Court. 

I. Supreme court. — A Supreme Court of the 
United States is provided for in Article III, section I. 
But Congress fixes the number of the judges, their 
salaries, and their duties, except as provided by the Con¬ 
stitution. 

II. Inferior tribunals. — By this clause Congress 
has power to organize inferior courts. This power has 
been used to organize the following courts: 

1. United States circuit courts of appeals. 

2. United States circuit courts. 

8. United States district courts. 

4 . A court of claims. 

/ 

5. A supreme court of the District of Columbia. 

6. Territorial courts in each organized territory. 

The power to organize these courts implies also the 
power to determine the powers of each court, within the 
limits of the Constitution. This power also Congress 
has frequently exercised. 

i Bnt the exercise of this power is very poor policy, because those invent* 
ors who need the benefit of &n extension of a patent are the very ones who 
are not powerful enough to secure it; and those who can afford to lobbv 
through Congress a special law extending their patents, have become rich 
enough not to need it. The result in such cases is to give a monopoly of a 
useful invention for & long time to people who do not need It and to whom it 
Is not in justice due. 

G 




98 


POWERS OF CONGRESS, 


[I: 8, 10. 


CLAUSE 10. 

CRIMES AT SEA. 

To define and punish piracies and felonies committed on the high seas, and 
offenses against the law of nations. 

I. Piracy. — Piracy is robbery at sea. By the gen¬ 
eral consent of Christian nations, a pirate is a common 
enemy and an outlaw. A pirate is not entitled to the 
protection of the country of which he is a citizen, but 
may be taken by the forces of any other nation as well 
and punished. The universal punishment for piracy is 
death. 

In addition, the United States and some other nation* 
have made the slave-trade piracy, and punish it witli 
death. As this is not agreed to by all nations, slave 
traders do not commit a crime against the law cf 
nations, but only against the law r of their own nation. 
An American slave-trader can be tried only by th* 
courts of his own country; while an ordinary pirate, 
although American, could be executed by any power 
which captured him, with or without trial. 

II. Felonies on the high seas. — Crimes are either 
felonies or misdemeanors . If the penalty attached to 
them be death, or imprisonment in a state prison, they 
are felonies; otherwise they are misdemeanors. 

The high seas, are those waters of the ocean outside 
the jurisdiction of any particular State. Generally this 
extends to low-water mark. This is the line that di¬ 
vides the jurisdiction of the United States from that of 
those States which border on the ocean. But so far as 
it concerns other nations, the jurisdiction of the United 
States extends to three miles from low-water mark, in¬ 
cluding all bays and gulfs. 




I: 8, 10.J 


CRIMES AT SEA. 


99 


As between the different nations of the world, the 
high seas, that is, the ocean beyond three miles from 
shore, are neutral ground, and free to all, to traverse, 
but not owned by any nation. The jurisdiction of each 
nation extends (a) to its merchant vessels while on the 
high seas, but not in foreign ports, and (b) to its ships 
of war everywhere, in port or on the high seas. And 
felonies committed by American citizens anywhere be¬ 
yond low-water mark and outside the jurisdiction of 
another nation, are punishable by United States law and 
not by State law. 

III. Offenses against the law of nations.— 
The law of nations, or international law , consists of 
those rules which Christian States acknowledge in their 
relation with each other. 

To secure the observance of these rules by American 
citizens, laws are necessary. Our government is re¬ 
sponsible for its conduct and for the conduct of its citi¬ 
zens towards other nations or their subjects. A single 
person could involve us in difficulties and perhaps in 
war with some foreign nations, if we had no laws to 
secure the observance of the Law of Nations by our 
citizens. 

For instance, during our Civil War the English gov¬ 
ernment allowed Confederate privateers to be fitted out 
in English ports to prey on our commerce. When our 
government demanded reparation for this breach of the 
Law of Nations, it was offered as an excuse that the 
English law was not such that they could prevent those 
privateers being fitted out. 

Our answer was, that it was the business of England 
to have such laws that she could fulfill her duties to 
other nations; that it was not our fault that her lawa 
were not what they should be; and that we could not 


100 


POWERS OF CONGRESS. 


[1:8, 1U 


take that as an excuse. The Tribunal of Arbitration 
to which the dispute was referred, decided that we were 
right, and condemned England to pay a heavy indem¬ 
nity for our losses by those privateers. 

Now the same principle applies to the United States. 
It is the business of our government to obey the law 
of nations and to make our citizens obey it. And it is 
no excuse that we have no laws by which we can en¬ 
force this. It is our business to have such laws, and to 
enforce them. 

Congress, therefore, very properly has the power to 
make laws respecting offenses against the law of nar 
tions, and this subject is very properly not left to the 
States. 

CLAUSE 11. 

THE WAR POWER. 

To declare war, grant letters of marque and reprisal, and make rules eon* 
cerning captures on land and water. 

I. The power to declare war. — The power to 
make war and peace is one of the highest attributes of 
sovereignty. Even under the Articles of Confederation 
the general government had the power to make war 
and peace. The only question that could arise is, 
whether this power should be legislative or executive. 
In this Constitution it is divided. The power to declare 
war is given to Congress, but the power to make 
treaties, which includes the power to make peace, is 
given to the President with the consent of the Senate. 

A declaration of war is not necessary for a war. Acts 
of hostility are enough, and with Indian tribes, fighting 
begins generally without any formal declaration of war. 
So also in the case of our Civil War, there was no reg¬ 
ular declaration of war. The war was begun by the 
rebels, and the government defended itself. 


1: 8, 11.] 


THE WAR POWER. 


101 


II. Privateerihq. — Privateers are those private 
armed vessels which are engaged in authorized war. 
They are distinguished from a regular navy because 
they are fighting for the sake of plunder and are only 
controlled by their commissions, while vessels of the 
regular navy sail under the orders of their own govern¬ 
ment, and in command of responsible officers. 

Privateers must always have a commission from their 
own government to show that they are not pirates. 
The commission is called a “ letter of marque and re¬ 
prisal.” 

Marque means boundary, and reprisal means retalia¬ 
tion. A letter of marque and reprisal is thus a com¬ 
mission to a private vessel to go beyond the boundary 
of its own nation and seize the vessels of a certain nation 
in retaliation for wrongs done by that nation. 

To issue letters of marque and reprisal is an act of 
war. It may be done without other acts of war, as in 
the case of our hostilities against France in 1798, in 
which letters of marque and reprisal were issued, but 
war was not regularly entered upon by either side. 

Or it may be done as a part of a regular war, as was 
the case in our war of 1812, with England. 1 

III. Prizes. — Congress can make rules respecting 
captures on land or sea. This is a necessary incident 


• Privateering is a remnant of piracy, as Franklin says: “The practice 
of robbing merchants on the high seas, is a remnant of the ancient piracy. 
Though it be accidentally beneficial to particular persons, it is far from being 
profitable to all engaged in it, or to the nation that authorizes it.” 

Privateering is not exactly piracy now, under the regulations of modern 
warfare; but it is a guerrilla warfare at sea. 

The tendency of international law now is to discourage, and if possible 
abolish, privateering. Several of the leading nations of Europe, at the treaty 
of Paris in 1856, agreed to abolish privateering, as between each other, and 
have since induced other powers to unite in that agreement. The United 
States refused to agree to abolish privateering, unless the further step 
should also be taken, to forbid all seizures of private property at sea, except 
contiaband of war. Steps have been taken by several powers looking 
toward that result. 

And it will not be many years before the United States, in common with 
all Chrisiian nations, will bind itself to abolish all privateering, and all 
seizures of private property at sea. When that time comes, this clause of 
the Constitution will become obsolete. 




102 


POWERS OF CONGRESS. 


[I: 8, 11. 


of the war power. This power, however, is limited by 
the recognized rules of international law, and by special 
treaties which we have made with several nations. 

When ships are captured at sea, either by men-of-war 
or by privateers, they are brought into some American 
port and tried by a United States district court, sitting 
as a prize court. All questions, regarding the lawful¬ 
ness of the capture and the share of the prize to be paid 
to each sailor, are also settled by the court according to 
United States laws. It is usual to divide the proceeds 
of a captured ship among the officers and men of the 
men-of-war or privateers which make the capture. 

Captures may also be made on land of certain kinds 
of property according to the regular rules of war. In 
this case the proceeds of the captures go to the United 
States and not to the soldiers making the capture. 
Questions in regard to the lawfulness of these captures 
will go before a United States court, and be decided 
according to the laws of the United States and the 
recognized rules of war. 

IV. Captures at sea. 

In war, those nations which are engaged in it are called belliger¬ 
ents, and all others neutrals. The treatment of neutral ships and 
of neutral goods on an enemy’s ships has been growing milder dur¬ 
ing this century. The question is still in process of being settled 
by the nations of Europe and America. There is little doubt but 
that the rule adopted by many nations (Treaty of Paris, 1856) will 
ultimately be adopted by all, and thus become a part of interna¬ 
tional law. This rule is that neutral ships with their cargoes 
{whether these are neutral or not), and neutral goods in an enemy’s 
ships, are exempt from capture with two exceptions: (a) where they 
are attempting to run a blockade of an enemy’s port, and ( b ) when 
they are contraband of war. The abolition of privateering goes 
along with this (see page 101). 

It is possible that the powers of Europe may finally agree to ths 
proposal of the United States to go still further and exempt all pri- 



1:8, 11.] 


THE WAR POWER. 


103 


rate property at sea from seizure, whether it belongs to a neutral 
or a belligerent. If this should ever be agreed upon, then war at 
sea will be confined to ships of war, and merchants will not be in¬ 
terfered with by war, except to prevent the trade in contraband 
goods or in case of a blockade. If this should ever be the case, this 
clause of the Constitution would, of course, be limited in its effect to 
these two cases. In the interest of humanity, we may hope that the 
civilized nations of the world will adopt these milder rules of naval 
warfare. But the United States is as yet only bound by interna¬ 
tional law to observe these rules: 

1. Neutral goods in neutral ships are exempt. 

2. Neutral goods in enemy’s ships are also exempt. 

3. But enemy’s goods in neutral ships are liable to seizure. 

4. Contraband goods, that is, arms or articles that directly help 
to carry on war, can be seized in neutral ships as well as in enemy’■ 
*hips. In frequent cases, the ships carrying contraband may also 
be seized. 

5. Neutral ships attempting to run a blockade, may be seized. 

6. And the ships and goods, private or public, belonging to a 
nation at war with us, may be seized, either by our ships of war, or 
by our privateers bearing a lawful commission. 

V. Captures on land. 

The rule on land is, that the property of neutrals is exempt from 
seizure or destruction, except so far as a state of war naturally put* 
it at hazard. It will not be intentionally captured or destroyed by 
a belligerent. But all the property of the enemy, both public and 
private, is liable to seizure. But in practice this is so modified that 
private property is only taken when it is needed for the operations 
of our army, or it is desired to prevent its use by the others. 

For instance, an army will take any provisions it needs, and any 
horses and wagons, wherever it can find them. It will capture or 
destroy all arms, ammunition and military stores of the enemy. 
And on a retreat, it will destroy railroads and brdges to hinder the 
advance of the enemy. 


10* 


POWERS OP CONGRESS. 


(II 8 V 1*. 


CLAUSE 12. 

THE REGULAR ARMY. 

To raise and support armies, but no appropriation of money to that use 
shall be for a longer term than two years. 

I. The army. — War calls for armies. One of the 
great curses of Europe is the burden of enormous stand¬ 
ing armies in every nation. The expense of supporting 
them is very great, and adds greatly to the taxation; 
large numbers of men are withdrawn from active 
industry at the sacrifice to themselves and to the 
nation of what they could otherwise earn. And the 
presence of a large army is a constant temptation to 
use it in war, and a constant temptation to ambitious 
generals or politicians to usurp authority. 

From this curse we are freed in this country. The 
ocean separates us from any foe we need fear. A stand* 
ing army is only needed to fight the Indian tribes, and 
to provide trained officers in case of war. We have a 
small standing army in time of peace. When war 
comes, we can easily increase our army by volunteering 
or by conscription, and on the return of peace, disband 
these forces again. This has been the constant policy 
of our government. 1 

IL Appropriation's for the army. — No appropri¬ 
ation can be made by Congress for more than two years. 
If Congress could make an appropriation for many 
years in advance, the party temporarily in power might 
fix a large standing army on the country for many 
years. As it is, the people can at any time, through 

1 “ Avoid the necessity of those over-grown military establishments, which 
under any form of government are inauspicious to liberty, and which are to 
be regarded as particularly hostile to republican liberty.”— Washington'* 
Farewell Address. 






I: 8,12.] 


THE REGULAR ARMY. 


105 


their representatives in Congress, reduce the army or 
abolish it altogether. In practice, Congress makes ap¬ 
propriations for the army from year to year. 

III. The command of the army. — The President 
is commander-in-chief of the army. (Art. I, Sec. 2.) 
The general direction of all business pertaining to the 
army is in the War Department, at the head of which 
is the Secretary of War. But the immediate command 
of the army is in the General; and all orders of the 
President or of the Secretary of War are transmitted 
to him to be carried out. 

IV. The organization of the army. 

In the army the unit of organization is the company. When 
full, a company consists of three commissioned officers, and about 
one hundred enlisted men. But a company often is much smaller. 
In time of peace the companies are reduced in size, and filled up 
again when the army needs to be enlarged. Thus we increase or 
diminish our regular army simply by filling up the companies or 
allowing them to be reduced, without changing the number of 
companies and regiments. Of the enlisted men in a company, from 
nine to thirteen are non-commissioned officers, a First Sergeant, 
four other Sergeants, and from four to eight Corporals. These 
non-commissioned officers are appointed from the best of the men. 

The commissioned officers of a company are a Captain, a First 
Lieutenant and a Second Lieutenant. The highest commissioned 
officer who is able to serve commands the company. If in battle 
all the commissioned officers are disabled, then the highest non¬ 
commissioned officer able to serve, takes command. But in any 
other case, a commissioned officer from some other company takes 
command temporarily. Captains and Lieutenants are called line 
officers, and all higher officers are called field officers. 

A regiment of infantry is composed of ten companies, a regiment 
of cavalry or artillery of twelve. The officers are a Colonel, a Lieu¬ 
tenant Colonel, and in an infantry regiment one Major, but in a 
cavalry or artillery regiment three Majors, each of whom commands 
a battalion of four companies. Th 3 highest of these able to serve 
commands the regiment, and if all are disabled, the senior Captain 
(the Captain who has held that rank longest) takes command tem- 


106 


POWERS OF CONGRESS. 


[I: 8, 12. 


porarily. In that case the Captain leaves his company in charge of 
the next highest officer. So also in a cavalry or artillery regiment, 
if a Major has to command a regiment, the senior Captain of that 
battalion commands the battalion temporarily. 

Each regiment has also an Adjutant and several non-commis¬ 
sioned officers and clerks. Surgeons and chaplains are assigned to 
regiments or to detachments of various sizes to suit the needs of the 
service. 

A Brigade is composed of from three to five regiments, together 
with one or more batteries (that is companies) of artillery, and is 
commanded by a Brigadier General or by the Senior Colonel. 

A Division is composed of from three to five brigades, and is 
commanded by a Major General or by the Senior Brigadier Gen¬ 
eral. 

An Army Corps is composed of several divisions, and is usually 
commanded by a Major General. 

The whole Army of the United States is now commanded by the 
senior Major General. The grades of General and Lieutenant Gen¬ 
eral, as well as of Admiral and Vice Admiral, are not now filled. 

There are various departments attached to the Army, each with 
its corps of officers. 

1. The Adjutant General’s Department. 

2. The Inspector General’s Department. 

8. The Bureau of Military Justice. 

4. The Signal Service. 

5. The Quartermaster’s Department. 

6. The Subsistence Department 

7. The Medical Department 

8. The Pay Department. 

9. The Corps of Engineers. 

10. The Ordnance Department. 

11. And several Post Chaplains. 

During our Civil War, a large number of militia and volunteers 
were called into the service. These were organized substantially as 
given above, except that each regiment, brigade, division and army 
corps had its own staff’, instead of the staff being organized into 
departments, as above stated. 

The following table shows the various ranks of commissioned 
officers in the Army, with the corresponding rank of naval officers: 


I: 8, 13.J 


THE NAVY. 


107 


Army. 

1. General. 

2. Lieutenant-General* 

3. Major-General. 

4. Brigadier-GenoraL 

5. Colonel. 

6. Lieutenant-Colonel. 

7. Major. 

8. Captain. 

9. First Lieutenant. 

10. Second Lieutenant. 


Navy. 

Admiral. 

Vice-Admiral. 

Rear-AdmiraL 

Commodore. 

Captain. 

Commander. 

Lieutenant- Commander. 
Lieutenant. 

Master. 

Ensign. 


Within these grades, promotions are usually made by seniority; 
•hat is, when a vacancy occurs, it is filled by promoting the officer 
who stands next in rank, 1 which is determined by seniority o£ 
jommission; that is, the officer who has held that rank the longest 
ranks first, the next next, and so on. 

But in time of war, promotions are frequently made for merit, 
without regard to seniority. Most officers of the regular army are 
educated at the United States Military Academy, at West Point, 
New York. 


CLAUSE 13. 

THE NAVY. 

To provide and maintain a navy. 

I. Our navy. — A navy cannot be raised as easily 
os an army, and it is necessary to have a considerable 
navy in order to protect our commerce in all parts of 
the world. A navy is of more use in time of f>eace than 
an army is, and of less use, generally, in war. It is 
better, therefore, to keep a regular navy, and not to de¬ 
pend upon a volunteer navy in case of war, as we do 
upon a volunteer army. For the same reason appropri¬ 
ations for a longer time are not forbidden. They may 
be necessary in building ships. 

» For the insignia of these various ranks, see Webster’s Unabridged Dio- 
tionary. 




108 


POWERS OF CONGRESS. 


[I: 8, 14. 


II. The command of the navy. — The President 
is Commander-in-Chief of the navy as well as of the 
army of the United States (Art. II, Sec. 2). The gen¬ 
eral direction of all business relating to the navy is in 
the Navy Department, at the head of which is the Secre¬ 
tary of the Navy. 

III. The organization of the navy. — In the 
navy the unit of organization is the ship. 

Vessels in the United States navy are arranged in four ratei 
according to size, besides iron-clad vessels, torpedo boats and tug*. 
Vessels of the first or second rate are generally commanded by Cap¬ 
tains, those of the third rate by Commanders, and those of the 
fourth rate by Lieutenant Commanders. Each vessel has also a 
number of officers and men according to its size. A squadron of 
several vessels is commanded by a Rear Admiral or a Commodore. 

The whole navy of the United States is under the general com¬ 
mand of an Admiral and a Vice Admiral. 

There is also a Marine Corps in connection with the navy. Ma¬ 
rines are soldiers who serve on board ships or in navy yards. Their 
organization is similar to that of the army, as far as their small 
numbers allow. 

Most officers of the navy are educated at the United States Naval 
Academy at Annapolis, Md. For the rank of naval officers see 
page 107. 

CLAUSE 14. 

ARMY AND NAVY REGULATIONS. 

To make rails for the government and regulation of the land and naval 

forces. 

I. The power to make rules. — The power to make 
war, and to organize armies and navies, implies also the 
power to rule these armies. Congress therefore has the 
power to make rules for the government of the army 
and navy. These rules together are called military law 
and naval law. These must not be confused with mar - 
tial law. Military law and naval law do not govern 


1:8, 14.] ARMY AND NAVY REGULATIONS. 109 


civilians, but only soldiers and sailors. Martial law is 
the government by an army of a part of this or any 
other country held by our armies, while war is going on. 
Military law is the government of armies; martial law 
is the government by armies. 

II. The ARMY AND NAYY REGULATIONS. — Congress 
has made rules for the government of the army and 
navy, called the Army Regulations and the Navy Regu¬ 
lations. These prescribe the duties of every officer, 
soldier or sailor, and provide punishments for every 
offense. For trifling offenses the officer in command 
may reprimand, or put under arrest without trial. But 
no such arrest can be longer than ten days. All seri¬ 
ous offenses must be tried by Court Martial. A Court 
Martial is organized regularly, and proceeds according 
to regular rules, giving the accused a fair trial, but one 
more summary than in a civil court. 

Soldiers and sailors can be punished for disobeying 
orders, as well as for what would be crimes in the case 
of ordinary citizens. And officers can also be punished 
for conduct unbecoming a gentleman. 1 Punishments 
may extend even so far as death. The President has 
power to pardon, or to reduce the punishment to a 
lighter one. Every officer, soldier and sailor must 
swear allegiance to the United States, and promise obe¬ 
dience to the rules of the army or navy, as the case may 
be. Every officer must subscribe to these rules, and 
every soldier or sailor must have them read to him. 


i Officers have been severely pnniehed for such offenses as refusing to pay- 
their debts, slandering the wife of a brother officer, etc. 




110 


POWERS OF CONGRESS. 


[I: 8, 15. 


CLAUSE 15. 

THE POWER TO CALL OUT THE MILITIA. 

To provide for calling forth the militia to execute the laws of the Union, 
suppress insurrections and repel invasions. 

I. Who are the militia? —The militia are citizen 
soldiers. The regular army is composed of men who** 
business is to be soldiers, and who do nothing else. 
The militia are citizens who are liable to be called away 
from their regular business to serve as soldiers for a 
short time. By act of Congress, all male citizens, and 
those who have declared their intention to become citi¬ 
zens, between the ages of twenty and forty-five, consti¬ 
tute the national forces, and are liable to perform mili¬ 
tary duty when called out by the President. These 
constitute the unorganized militia, and are not ready 
for service till called out, officered, armed and drilled. 
The organized militia are those men who have been 
formed into companies and regiments by authority of 
State or United States laws, and are officered, armed 
and drilled, and ready to be called out at any time. 

II. Calling out the militia. — The militia may be 
called out for three things: (a) to execute the laws of 
the United States, (b) to suppress insurrections, and (c) 
to repel invasions. Each State may also call out its 
own militia for similar purposes. The President alone 
can call out the militia of the United States, and he 
may call out any number at his discretion, and from all 
the States or from some only, as may be most conven¬ 
ient. He calls on the Governor of each State for a cer¬ 
tain number of militia, and it is then the duty of the 
Governors of the States called on, each to call out that 
number of militia. If the States do not furnish their 




1:8, 16.] 


TO ORGANIZE THE MILITIA. 


Ill 


militia as called for, the government will draft men 
enough to make up the number. 

The militia have been called out under this clause 
only on three occasions: 

In the Whisky Rebellion of 1794, the militia of four 
neighboring States were called out to enforce the laws. 
In the War of 1812, the militia were again called out to 
repel invasion, and in the Civil War the militia were 
again called out to suppress insurrection. 

III. Volunteers. — Under Clause 12, the govern¬ 
ment has always maintained a small standing army. 
At several times the government has also accepted the 
services of volunteer companies or regiments for longer 
or shorter times. These volunteers are not a part of 
the regular army nor are they called out as militia. All 
our great wars have been fought chiefly by the aid of 
volunteers; and in most of our Indian wars volunteers 
have served beside the regular soldiers. 

CLAUSE 16. 

THE POWER TO ORGANIZE THE MILITIA. 

To provide for organizing, arming and disciplining the militia, and for 
governing snch part of them aa may be employed in the service of the 
United States, reserving to the States respectively, the appointment of 
the ofllcers, and the authority of training the militia according to the 
discipline prescribed by Congress. 

I. State and United States powers over the 
militia. — The States may have their own militia, sub¬ 
ject to their own laws, and many of them do have such 
militia. (See Amend. II.) 

The militia of each State are organized under the laws 
of that State. But the United States may at any time 
prescribe regulations for organizing, arming and drill¬ 
ing the militia. But the States carry out these regula- 


112 


POWERS OF CONGRESS. 


[I: 8, 17. 


tions. When the States furnish militia to the United 
States, they usually do it by regiments, with officers 
appointed by the State. These regiments are mustered 
into the United States service, and are then organized 
into brigades, divisions and army corps by the United 
States, the President appointing the officers of the 
brigades, divisions and army corps. 

When volunteers or militia are mustered into the 
service of the United States, they are subject to the 
Army Regulations like the regular soldiers. 

II. The value of citizen soldiers. — The United 
States does not depend for its defense upon professional 
soldiers, who make a business of war, but upon the 
courage and patriotism of all its citizens. As we are 
free from any serious danger of foreign invasion, we do 
not even need to have our citizens trained in the use of 
arms and in military manoeuvers. And therefore we 
have paid little attention to the organization and train¬ 
ing of our militia, perhaps too little attention. But 
our Civil War showed what a nation of citizens un¬ 
trained in war can do in time of need. In four years, 
over two and a half million men were mustered into 
the armies of the United States, and nearly all as militia 
or volunteers. The navy of the United States may be 
increased in time of war by volunteering, but not by 
calling out the militia or by drafting. 

CLAUSE 17. 

THE power of exclusive legislation. 

To exercise exclusive legislation in all cases whatsoever, over such district 
(not exceeding ten miles square) as may, by cession of particular 8tates, 
and the acceptance of Congress, become the seat of government of the 
United States, and to exercise like authority over all places purchased 
by the consent of the legislature of the State in which the same shall 
be, for the erection of forts, magazines, arsenals, dockyards, and other 
aeedful buildings 




I: 8, 17.] 


OF EXCLUSIVE LEGISLATION. 


113 


I. The extent of this power. — Within the 
boundaries of the States, Congress exercises only a lim¬ 
ited power of legislation. It can legislate only on those 
subjects granted in this section or in other parts of the 
Constitution. Other subjects are either reserved to the 
States to legislate on or are forbidden to both State and 
United States governments. 

But in certain places the United States can exercise 
all the authority which it can exercise in the States, 
and also all the authority which a State can exercise. 
These places are: 

1. The District of Columbia. 

2. Forts, magazines, arsenals and dockyards in which the juris¬ 

diction has been ceded to the United States. 

3. Territories. (See IV, 3, 2.) 

4. On board United States men-of-war anywhere. (See page 

99.) 

5. On board United States merchant vessels when at sea. (See 

page 99.) 

6. In the tide waters of the coast, so far as they are not under 

the jurisdiction of the several States. (See page 98,) 

Over these places the United States exercises exclusive 
jurisdiction, and Congress has therefore the exclusive 
power of legislation there. 

II. The District of Columbia. — The States of 
Maryland and Virginia ceded to the United States in 
1790, a tract of country just ten miles square (or a 
hundred square miles in area). This was named the 
District of Columbia, and in 1800 the seat of govern¬ 
ment was moved there. In 1846, that part of the 
District of Columbia lying southwest of the Potomac, 
which had been given by Virginia, was ceded back to 
Virginia. The District of Columbia now contain! 
sixty -six square miles. 

H 


114 


POWERS OF CONGRESS. 


[1:8,17. 


The city of Washington, in the District of Columbia, 
is the Capital of the United States. There was no city 
or village at which the capital was located, but the city 
of Washington was created to be the capital. Its name 
was given it to perpetuate the memory of the greatest 
American, who was u first in war, first in peace, and 
first in the hearts of his countrymen.” It is not far 
from his own home, at Mount Vernon, where he is 
buried. 

III. Taxation* without representation*. — The 
District of Columbia can be taxed by Congress, but it 
is not entitled to represention in Congress, nor can its 
people vote for Presidential electors. This inequality 
could only be obviated by ceding the District back to 
Maryland or erecting it into a separate State. And 
this ought not to be done, because the United States 
needs to have absolute control of its capital. 

IV. Why congress has exclusive jurisdiction*.— 
The government of the United States should be supreme 
at its capital if anywhere. If the capital of the United 
States were within any of the States, it would be sub¬ 
ject to the mixed jurisdiction of the State and of the 
United States, and this would lead to endless complica¬ 
tions and difficulties. 1 

V. Forts, navy yards and arsenals. — The 
United States can also have jurisdiction over the places 

i An illustration of the troubles that would arise if the capital were 
wi:hin a State, was furnished at the close of the Revolutionary war, when a 
email body of troops mutinied because they had not been paid, and marched 
into Philadelphia to demand their pay of Congre^. As there were no legal 
troops near, Congress had to call on Pennsylvania for militia or police to 
cbei'end them against the mutineers. This the government of Pennsylvania 
weakly hesitated to do. Thereupon Congress removed to Trenton, in New 
jersey, for safety, should such an occasion happen in Washington now, 
the President could at once call out every able-bodied man in the District 
to defend the government, without waiting for the slow movements of State 
governments to furnish him militia. As it is, all questions of jurisdiction 
are avoided. In the District of Columbia there is butone jurisdiction, and 
that belongs to the United States. 



I: 8, 18.] 


INCIDENTAL POWERS. 


115 


needed for forts, arsenals, navy yards and other public 
buildings. But the consent of the legislature of thr> 
State in which these buildings are situated, must first 
be obtained. 

In giving this consent, State legislatures have gener¬ 
ally reserved the right to serve all State processes, civil 
and criminal, in these places. The object of this is, that 
these places may not be a sanctuary for criminals, who 
otherwise could not be arrested by State authority if 
they escaped into these places. 

We must distinguish between the 'property of the 
United States and the jurisdiction of the United States. 
Forts, arsenals and navy yards are the property of the 
United States and are also in its jurisdiction. In the 
District of Columbia, the United States has property 
only in the public buildings and grounds; but it has 
jurisdiction over all the District. In the case of public 
lands unsold, within a state, the United States has 
property, but has no more jurisdiction than anywhere 
else in the State. When the United States owns prop¬ 
erty, it owns it as a private individual does, except that 
it cannot be taxed by a State. 

CLAUSE 18. 

INCIDENTAL POWERS. 

To make all laws which shall be necessary and proper for carrying Into elo¬ 
cution the foregoing powers, and all other powers vested by this Constita- 
tion in the Government of the United States, or in any department or 
officer thereof. 

I. These powers incidental. — This clause gives 
Congress the power not only to pass such laws as have 
been expressly named in this section, but any laws 
which may be necessary and proper for carrying into 
execution these express powers, and also any laws which 


116 


POWERS OE CONGRESS. 


[1:8, 18> 


may be necessary and proper for carrying into execution 
any other powers vested by the Constitution in any 
part of the government. For instance, the power in 
Clause 7, to establish post offices and post roads, is a 
power expressly granted to Congress. But in order to 
carry this power into execution, it is necessary and 
proper to protect the mail. Congress has therefore 
assumed under this clause the additional power to pass 
laws punishing robbery of the mails, and requiring all 
persons who handle the mail in any way to be under 
oath, and requiring postmasters to give bonds. Con¬ 
gress has, also, under this clause, created a Post Office 
Department, with some sixty thousand post offices and 
postmasters. But in carrying out Article II, Sec. 2, 
Congress has by law vested the appointment of these 
officers partly in the President with the consent of the 
Senate, and partly in the Postmaster General. 

II. Why incidental powers are granted. — The 
powers granted to Congress by this clause are incidental 
or implied powers, not expressly given by any part of 
the Constitution. This clause was opposed by a large 
party led by Patrick Henry, for fear that Congress 
should find an excuse in it to override the rights of the 
States, and the Tenth Amendment was passed to quiet 
them. Bat experience has shown that the States still 
retain all the rights that they need, and that the Fed¬ 
eral government has not grown into a despotism be¬ 
cause of this clause. 

The framers of the Constitution claimed that this 
clause only asserted in words what would have been 
implied in any case. They claimed that it was only 
common sense that a government should be able to do 
what it was established on purpose to do. And they 
claimed that it was a sound rule of law, admitted by all 


1 : 8 , 18 .] 


INCIDENTAL POWERS. 


117 


judges, that when a power was granted, liberty to do all 
that was needed to carry it into effect was also granted 
(see Amend. X). Experience has shown that the very 
political parties which wished to limit the power of 
Congress and the President, have been when in power 
the very ones to do things not expressly granted in the 
Constitution. They were more sensible in their prac¬ 
tice than in their theories. This Constitution creates a 
real national government, and this government must 
have national powers. Some of these needful powers 
can he foreseen, and are named in this section and else¬ 
where. But it was impossible to see all the emergencies 
that might arise, and therefore this general power is 
also given. 

III. What laws congress may pass. — Congress 
has a right to make any laws, (1) which are expressly 
authorized by the Constitution; (2) or which are implied 
in the express powers given to Congress, and necessary 
to carry them out; (3) or which are necessary to carry 
out any powers vested in the United States, or in any 
United States officer; (4) or which are necessary for the 
common defense or the general welfare. The enacting 
clause gives the power to the government to provide for 
the common defense, and to promote the general wel¬ 
fare. 

But Congress cannot make laws on subjects, (1) which 
are expressly prohibited to Congress; (2) or which are 
expressly reserved to the States; (3) or which have not 
been granted to either the States or National govern¬ 
ment. 

1 V. Powers exercised under this clause. 

The following powers are some of those which have been exer¬ 
cised by Congress under this clause: 

1. The slave trade has been prohibited. The Constitution pro- 


POWERS OF CONGRESS. 


118 


[1:8, 18w 


▼ides that Congress shall not prohibit it before 1808 (Art. I, sec. 9). 
The necessary implication is that it can after that date. 

2. The writ of habeas corpus has been suspended in time of war. 
The Constitution provides that that writ shall not be suspended ex¬ 
cept in case of rebellion or invasion (Art. I, sec. 9). The necessary 
implication is that it may be suspended in that case. 

8. Congress has erected light houses, as a power implied in the 
right to regulate commerce. 

4. The United States has acquired territory by purchase and by 
conquest, and has governed that territory or formed states out of it. 
No express authority is given in the Constitution for this. When 
President Jefferson bought Louisiana, he is reported to have said 
that he stretched the Constitution till it cracked. But he forgot 
that Congress could do anything necessary for the defense and wel¬ 
fare of the nation. Texas was also annexed, and other greac addi¬ 
tions to our territory have been made by conquest and purchase 
under the same power. 

5. The United States punishes offenses committed on board ships 
of war, even in port, and by persons not in the military or naval 
eervice. The reason is, that a ship of war is by the law of nations 
always in the jurisdiction of the nation to which it belongs. 

6. All persons in the United States service are exempt from State 
control while engaged in their duties as officers or employees of tha 
United States. Congress has not even made any law on this sub¬ 
ject, but the Supreme Court has decided that this is a necessary 
incident of the general sovereignty of the United States. 

And the following implied powers have been exercised by Con¬ 
gress, but have been opposed as unconstitutional by powerful 
political parties: 


1. National banks have been created. 

2. Paper money has been issued by the government as a war 

measure. 

8. International improvements have been made, such as road* 
and canals, and making rivers navigaole. 

4. An embargo was laid on all commerce once only. 

5. Most of the “reconstruction measures” at the close of the 

Civil war. 


Of the great political parties, the Federalists, the Whi .:s, and th* 
Republicans (the present party), have been inclined to give th« 



1:8, 18,1 


INCIDENTAL POWERS. 


119 


national government as much power as possible under this clause. 
And the anti-Federalists and the Republicans (the old party) and 
the Democrats have been inclined to give it as little power as pos¬ 
sible. 

Y. Additional powers given to congress in 

OTHER PARTS OF TniS CONSTITUTION. 

•In addition to the powers named in this section, many other 
powers are either expressly given to Congress, or plainly implied in 
other parts of the Constitution. 1 A list of these powers is given 
below. These are all legislative powers, and require the action of 
the President unless otherwise specified. 

A. Powers relating to congress. — 1. The power to appor¬ 
tion Representatives among the several States according to their 
population, and to fix the number of Representatives, giving at 
least one to each State, and not more than one to every thirty thou¬ 
sand population (I, 2, 3), and the power to reduce the representation 
of a State for denying the right of suffrage to male citizens over 
twenty-one, except for crime or treason (Amendment XIV, 2). 

2. The power to regulate elections for Senators and Representa¬ 
tives, in regard to the time, place and manner of holding such elec¬ 
tions, except as to the place of choosing Senators (I, 4, 1). 

3. The power to fix the time of the annual meeting of Congress 
(I, 4, 2). 

4. The power to adjourn. This is not done by law but by a con¬ 
current resolution, and does not require the action of the President. 
But either House alone may by resolution adjourn for not more 
than three days at a time. The power to adjourn includes the 
power to adjourn to some particular time or place. But neither 
House alone can change the place of sitting. 

5. The power to fix the salary of Senators and Representatives , 
together with the salary of all officers and employees of either 
House (I, G, 1). 

B. Powers relating to the executive. — 1. The power 
to fix the day of choosing Presidential Electors , and of their choos¬ 
ing President and Vice President (II, 1, 4), with the limitation 
that the day shall be uniform throughout the United States. 

2. The power to. canvass the votes of the President and Vies 


i As these are discussed in their proper places, a brief mention only la 
here given to each. 




120 


POWERS OF CONGRESS. 


(1: 8, 18. 


President (Amendment XII). This is the power implied in the 
words, “ The votes shall then be counted.” Congress has assumed 
the power under these words to canvass the votes and determine 
what votes shall be received, and what thrown out. The right of 
Congress to act as a canvassing board has been disputed; bat the 
practice is now firmly established. 

3. The power to determine what officer shall act as President 
when there is no President or Vice President (II, 1, 6.) Such of¬ 
ficer is an acting President only, and holds only till the disability 
of the President or Vice President is removed, or a President can be 
elected. 

4. The power to fix the salary of the President , but not to increase 
or diminishit during his term of office (II, 1, 7.) 

5. The power to regulate the civil service of the United States 
(II, 2, 2.) This includes the power to establish or abolish offices, 
and to fix salaries and duties of officers, and to regulate the manner 
of appointment of inferior officers. 

6. The power to control the reception of titles and presents by of - 
ficers of the United States (I, 9, 7). No officer of the United States 
can accept any title or present from any foreign king or state, ex¬ 
cept with the consent of Congress. 

C. Powers relating to the courts. — 1 . The power to fix 
the salaries of judges of the Supreme Court and of all other United 
States courts (III, 1, 1). 

2. The power to regulate the appellate jurisdiction of the Supreme 
Court (III, 2, 2). The original jurisdiction of the Supreme Court 
is fixed in the Constitution (III, 2, 2). 

8. The power to regulate the jurisdiction of inferior courts. A 
power implied in the power to organize inferior courts (I, 8, 9, 
and III, 1). 

4. The power to fix the place of trial for crimes committed outsido 
cf any State (III, 2, 3). 

5. The power to declare the punishment for treason , but under 
the limitation that no attainder of treason shall work corruption of 
blood or forfeiture, except during the life of the person attainted 
(III, 3, 2). 

6. The power to forbid jury trials in lawsuit 0 , where twenty dol¬ 
lars or less is involved (Amendment VII). 

D. Powers relating to the states.— 1. The power to 
allow States to levy duties , but the net produce of such duties shall 



i: 3, 18.] 


INCIDENTAL POWERS. 


121 

be paid into the United States treasury, and the State laws on that 
subject shall be subject to the revision and control of Congress 

(I, 10, 2). 

2. The 'power to allow or forbid States to keep armies and navies 
in time of peace (I, 10, 2). 

3. The power to allow or forbid Stales to make compacts with 
other States or with foreign powers (I, 10, 2). 

4. The power to allow or forbid States to engage in war (I, 10, 2). 

5. The power to prescribe the manner of proving the public rec¬ 
ords of one State in another. This must be by general law (IV, 1). 

6. The power to admit new States into the Union , witb the limita¬ 
tion that no new State shall be formed within the boundaries of 
another State, or by the junction of two States or parts of States, 
without the consent of the legislatures of the States concerned. 

7. The power to guarantee each State a republican form of gov¬ 
ernment (IV, 4). 

8. The power to propose amendments to the Constitution , which 
become parts of the Constitution by ratification of three-faurths of 
the States (V). For this the President’s signature is not required. 

E. Legislative powers. — 1. The power to prohibit the slave 
trade after ISOS (I, 9, 1). 

2. The power to suspend the writ of habeas corpus when in case* 
of rebellion or invasion the public safety may require it (I, 9, 2). 

3. The poiver to make all appropriations of money from the 
treasury. This implies also the power to investigate all expendi¬ 
tures of money by any department of the government (I, 9, 6). 

4. The poiver to govern the territory of the United States , and to 
dispose of the public land and other property belonging to the 
United States (IV, 3, 2). 

5. The power to enforce the provisions of Amendments XIIZ , 
XIVj and XV, by appropriate legislation (Amendments XIII, 2) 
XIV, 5; XV, 2). ' 


PROHIBITIONS ON CONGRESS. 


/ 


122 PROHIBITIONS ON CONGRESa [Is •. 


SECTION 9. 

PROHIBITIONS ON CONGRESS. 


ANALYSIS OP THIS SECTION. 

(And other prohibitions on Congress in other varts of this Constitution .) 


r 


r 


I. FINANCIAL ... « 




1. To draw money from the treasury 

otherwise than by an appropri¬ 
ation bill. I, 9, t 

2. To make appropriations for the 

army for more than two years.. I, 8,12 
8. To levy direct taxes except in 


proportion to population.. I 9, 4 

4. To appropriate money without 

publishing accounts . I, 9, 0 

6. To question the validity of the 

public debt.Am. XIV 

6. To pay rebel debts or claims for 

slaves.Am. XIV 




r 


II. Cojockecial.. 




I 


1. To prohibit the slave trade before 

1803. 

2. To levy export duties. 

8. To discriminate against the com¬ 
merce of particular States .... 


I, 9,1 

I, 9,# 

I, M 


III. ReUATTNO TO < 
U. S. Oaitcees 


1. To increase or diminish the Pres¬ 

ident’s salary during his term 
of office. . II, M 

2. To diminish the salary of U. 8. 

Judges during their continu¬ 
ance in office . . HI, 1,1 

8. To impose religious tests for 

office. Vlt • 


/* 


I\ 




Reuattno to 
the States. 


1 


1. To erect new States out of parti 

of States without the consent 

of the States concerned... .... IV, A » 

2. To exercise powers reserved for 

the States . Am. X 
























PROHIBITIONS ON CONGRESS. 


I: 9, 1.] 


THE SLAVE TRADE. 


123 


V. Ret.attwo t o 

J’cusokiL 
LlHEliTT .... 




1. To snspend writ of habeas corpus 

except in war. I, 9 , 9 

2. To pass a bill of attainder. I, 9, 3 

3. To pass an ex post facto law.... I, 9, 3 

4. To erect a titled aristocracy. I, 9, 8 

5. To deny the right o! trial by jury, III, 2, 3 

6. To make anything treason except 

rebellion. Ill, 3, 1 

7. To make an attainder of treason 

work corruption of blood or ' 
forfeiture except for life... Ill, 3, S 

8. To establish or prohibit religion. Am. I 

9. To abridge the freedom of speech 

and of the press. Am. I 

10. To abridge the right of assembly 

and petition. . Am. I 

11. To suppress the militia. Am. II 

12 To quarter soldiers, except in war Am. Ill 

13. To authorize unreasonable 

searches and seizures . Am. II 

14. To refuse a fair trial to accused 

persons.Ain’s V and VI 

15. To take private property for pub¬ 

lic use without just compensa¬ 
tion . Am. V 

16. To refuse trial by jury in impor¬ 

tant civil suits . Am. VII 

17. To impose excessive bail, fines 

and punishments.Am. XIII 

18. To deny other personal rights 

not enumerated. Am. IX 

19. To establish slavery or serfdom Am. XIII 

20. To deny negroes the right to vote, Am. XY 


CLAUSE 1. 


THE SLAVE TRADE. 


*he migration or Importation of such persons as any of the States now 
existing shall think proper to admit, shall not be prohibited by the Con¬ 
gress prior to the year one thousand eight hundred and eight, but a tax 
or duty may be imposed on such importation, not exceeding ten dollar* 
for each person. 

The slave trade. — The United States has the 
honor of being the first nation to take steps to abolish 
the African slave trade. When this Constitution was 

















124 


PROHIBITIONS ON CONGRESS. 


[I. 9, 2 


adopted, ten States out of the thirteen had already pro¬ 
hibited the slave trade. But North Carolina, South 
Carolina and Georgia insisted on some guarantee that 
their slave trade should not be disturbed. It was finally 
compromised by this clause, which gave them twenty 
years in which to import negroes from Africa. 

The slave trade to foreign countries was prohibited in 
1794, and the importation of slaves was prohibited in 
1807, to take effect January 1, 1808, the very first day 
when it was constitutional to do so. 

Great Britain abolished the slave trade in 1S07, a few 
days after our act was passed. 

The framers of the Constitution were ashamed to use 
the words “slave” or “slavery,” and therefore used the 
word “ persons ” instead. 

Slavery is now abolished by the thirteenth amend¬ 
ment, and of course the slave trade with it is thus pro¬ 
hibited by the Constitution. 

CLAUSE 2. 

THE WRIT OF HABEAS CORFU8. 

The privilege of the writ of habeas corpus shall not be suspended, unlesf 

when in cases of rebellion or invasion the public safety may require it. 

I. Object of the writ. — The writ of habeas cor¬ 
pus is intended to release any person illegally impris¬ 
oned. Any person who is imprisoned without proper 
warrant or indictment, can sue out a writ of habeas cor - 
pws, before any judge or court commissioner. Unless 
the officer who has him in charge can show a legal war¬ 
rant or other authority, the prisoner is discharged. 
The writ of habeas corpus is a guarantee of personal lib¬ 
erty, against unjust imprisonment by officers. 

The words “ habeas corpus ” are the first two words 
of the old Latin form of the writ, from which the writ 
is named. 


I: 9, 3.] ATTAINDER AND EX POST FACTO LAWS. 125 

II. Suspension of the writ. — When the writ of 
habeas corpus is suspended, this safeguard against arbi¬ 
trary and illegal arrest is laid aside for the time being. 
To suspend the writ of habeas corpus , means to give 
government officers power to arrest and imprison any 
one without a regular warrant or indictment. 

The writ can only be suspended when the public 
safety requires it, in case of rebellion or invasion. Mar¬ 
tial law then takes the place, partly or wholly, of civil 
law (see page 270). Persons are then arrested, tried and 
punished by martial law, and no writ of habeas corpus 
can save them. This is a necessity of war, when the 
public safety overrides all other considerations. 

III. Disputed questions. 

1. Who has power to suspend the writ ? All agree that Congress 
has the power. But it is claimed by many that no one else has. 
The question whether the President or other executive olhcers have 
the right to suspend the writ, has never been decided by the courts. 
As a fact, the writ has been suspended several times by command¬ 
ing 1 generals and by the President. 

2. Where can the writ be suspended ? Only in that part of the 
country actually involved in the war. During the Civil War a man 
named Mulligan vras arrested for treasonable conspiracy in Indiana, 
tried by a court martial and condemned to be executed. But the 
Supreme Court released him on a writ of habeas corpus , on the 
ground that Indiana was not the seat of war, and therefore martial 
law could not lawfully be proclaimed there, liis offense was one to 
be tried by the civil courts, and liable to a less punishment, than 
that of death. 


CLAUSE 3. 

BILLS OF ATTAINDER AND EX POST FACTO LAWS. 

No bill of attainder or ex post facto law shall be passed. 

I Bills of attainder. — A bill of attainder is a lav» 
inflicting punishment without trial. It was a common 
practice in England, some centuries ago, for Parliament 


126 


PROHIBITIONS ON CONGRESS. 


[I: 9, 3. 


to pas3 bills of attainder. They answered all the ends 
of impeachment and much more. It was usual in such 
bills to prescribe the punishment of death, confiscation 
of property, deprivation of all honor and titles, and cor¬ 
ruption of blood, so that the descendants could not 
inherit property through the person attainted. 

Such an act is an easy means of revenge upon politi¬ 
cal opponents, and is generally used for that end. It 
gives the accused no regular trial. It punishes for acts 
that are not prohibited by law, it gives the accused lit¬ 
tle or no means of defense, and it punishes his family 
as well as himself. The power to pass bills of attainder 
is therefore wisely forbidden (a) to Congress, and ( b ) to 
the State legislatures (section 10). 

Persons who offend against the law may still be tried 
in the courts, and political offenses committed by public 
officers may be tried by impeachment, under careful 
iimitaciuns. 

This wise provision ot our Constitution has taken the 
sting out of our political contests. 

II. Ex post facto laws. — An ex post facto law i* 
one which punishes not only those who may after¬ 
wards break it, but those who have already done any¬ 
thing contrary to it, or one which adds a greater 
punishment to crimes already committed. This ap¬ 
plies’only to criminal laws and not to civil laws. A 
civil law may be retrospective, and not violate this 
clause of the Constitution. It is plainly unjust to 
punish any one for breaking a law which was not in 
existence wdien he did the act. This is also forbidden 
to the States as well as to the United States (section i 0% 





Is 5.] 


DIRECT TAXES —EXPORT DUTIES. 


m 


CLAUSE 4. 

DIRECT TAXES. 

No capitation, or other direct tax shall be laid, nnless In proportion to the 
census or enumeration hereinbefore directed to be taken. 

Direct taxes in proportion to population. — A 
capitation tax is a poll tax; a fixed sum on each person 
liable to it, without regard to his wealth or poverty. 

According to section 2 of this Article, the represent¬ 
ative population was to be made up by excluding wild 
Indians, and counting only three-fifths of the slaves, 
hut counting all the free population. But by the Four¬ 
teenth Amendment, the representative population con¬ 
sists of the whole number of persons in each State, 
excluding uncivilized Indians. This clause provides 
that all direct taxes must be levied on the State in pro¬ 
portion to this representative population. No poll tax 
has ever been levied by the United States, and only a 
few direct taxes. 

CLAUSE 5. 

EXPORT DUTIES. 

No tax or duty shall be laid on articles exported from any State. 

I. Export duties forbidden. — Export duties are 
taxes laid on articles carried out of the country. It is 
the practice in many countries to tax both imports and 
exports. If exports are taxed, their price will be raised, 
and the products raised or manufactured in this coun¬ 
try cannot be so profitably sold in foreign countries, 
and perhaps cannot compete at all with the same pro¬ 
ducts from foreign countries. An export duty usually 
tends to discourage home production. But import 
duties may be used so as to encourage home production, 


PROHIBITIONS ON CONGRESS. 


128 


[Is 9, 6. 


or at least not to harm it. For this reason, export 
duties are forbidden by this section. 

II. A DISPUTED QUESTION - — ARE ALL EXPORT DUTIES 
FORBIDDEN BY THIS CLAUSE? 

Probably they are. But it is claimed by some that the intention 
of this clause is to prevent a discrimination against any one or more 
States, by export duties levied in those States alone. They claim 
that an export duty levied equally throughout the Union is not for¬ 
bidden by this clause. 

The courts have never been called upon to decide this case. But 
in all probability, they would decide any export duty whatever to 
be unconstitutional. For an export duty on any one article is ft 
tax upon the productions of a few States for the benefit of the rest. 
Thus, an export duty on cotton would be a tax upon the produc¬ 
tions of the Gulf States; an export duty on wheat and beef would 
be a tax on the productions of the Interior States, and an export 
duty on manufactured goods would be a tax on the industry of the 
Eastern and Middle States. 

CLAUSE 6. 

COMMERCIAL RESTRICTIONS. 

No preference shall be given by any regulation of commerce or revenue to 

the ports of one State over those of another; nor shall vessels bound 

to or from one State, be obliged to enter, clear, or pay duties in another. 

Commercial restrictions forbidden. — This clause 
makes commerce entirely free between the States, and 
makes unlawful any preference of the commerce of one 
State over that of another. To u enter ” a port is to 
land the whole or a part of the cargo there; to “clear 
from ” a port is to take in the whole or a part of the 
cargo there. 

While we were British colonies, the British govern¬ 
ment had put all sorts of restrictions on the commerce 
of the colonies, in order to favor British merchants at 
the expense of the colonies, and this was one cause of 
the Revolutionary War. This clause prevents any such 
restrictions or distinctions between the States. 


I: 9, 7.] APPROPRIATIONS AND ACCOUNTS. 


m 


CLAUSE 7. 

APPROPRIATIONS AND ACCOUNTS. 

Ho money shall be drawn from the treasury, but in consequence of appro¬ 
priations made by law; and a regular statement and account of the re¬ 
ceipts and expenditures of all public money shall be published from 
time to time. 

Appropriations and accounts required. — This is 
to prevent frauds on the treasury. It does not prevent 
all frauds; but it makes them much more difficult. A 
fraud now is liable to be detected, not only by the exec¬ 
utive officers, but also by Congress and by the people, for 

1. No money can be paid out except on an appropri¬ 
ation passed in the form of a law. 

2. And all accounts of the government must be pub¬ 
lished for the information of the people. 

Appropriations are voted by Congress each winter 
for the year ending June 30. The head of each De¬ 
partment furnishes an estimate of what will be needed 
in his department for the ensuing year. These esti¬ 
mates must go into details, and show how much is 
needed for each item of expense. These estimates are 
carefully considered in each House of Congress, and are 
frequently cut down. A separate appropriation bill is 
generally made for each branch of the service. These 
appropriation bills usually originate in the House of 
Representatives. They are frequently amended in the 
Senate, and they may be vetoed by the President. 

The account of the receipts and expenditures of the 
government are published every year in the form o£ a 
report of the Secretary of the Treasury. 


l 


130 


PROHIBITIONS ON CONGRESS. 


[I: 9. 8. 


CLAUSE 8. 

TITLES OF NOBILITY. 

No title of nobility shall be granted by the United States; and no person 
holding an office of profit or trust under them, shall, without the consent 
of the Congress, accept of any present, emolument, office, or title of any 
kind whatever, from any king, prince, or foreign State. 

I. No TITLES GRANTED BY CONGRESS. — One of the 
fundamental principles of our government is, that all 
men are equal before the law. We cannot have a titled 
aristocracy without violating this principle. It is true 
that we cannot regulate social intercourse and make 
people treat one another as equals in society. Color, 
ancestry, office, wealth, and culture, will always create 
social distinctions. But before the law, every citizen of 
the United States is equal with every other. No title* 
of nobility give a few citizens an invidious distinction 
above the rest. 

II. Foreign titles, offices and presents. — Thii 
clause also prohibits United States officers from accept ¬ 
ing titles, offices or presents from foreign nations. 
These might easily become bribes to officers to betray 
their country. Such things have frequently been done 
in the history of other republics, and have periled their 
liberties. In case such a present is not meant as a 
bribe, it is easy to secure the consent of Congress to its 
being received. 

It is a usual courtesy of sovereigns to exchange pres¬ 
ents. When the President receives such a present from 
a foreign sovereign, it is not meant for him as an indi¬ 
vidual, but for him as the head of our nation for tha 
time being. Such presents are accepted, and kept a* 
the property of the United States. If courtesy require* 
a present in return, it is voted by Congress. 



5: 9, *.] 


TITLES OF NOBILITY. 


131 


III. We AT IS NOT PROHIBITED BY THIS CLAUSE.— 
1 . Officers of the several States are not prohibited by 
this Constitution from receiving titles and presents from 
foreign powers; but they are generally prohibited by 
the State Constitutions. 2. Citizens of the United 
States who do not hold office are not prohibited from 
accepting titles, offices or presents from foreign sov¬ 
ereigns. And several Americans have accepted office 
and received honors in foreign countries. These honors 
have been either for services rendered to those countries 
or for services rendered to the cause of science. 

An amendment was proposed by Congress in 1811 , to 
prevent citizens of the United States taking titles, 
offices or presents from foreign sovereigns, but it has 
never been ratified by the State legislatures. (See page 
251). 

IY. Additional prohibitions on congress. 

Besides the things prohibited in this section, the following things 
are expressly prohibited to Congress in other parts of the Consti¬ 
tution : 

1. To make any appropriation of money for the army for a longer 
term than two years. (I, 8, 12.) 

2. To increase or diminish the salary of the President during the 
period for wnich he is elected. (II, 1, 7.) 

3. To diminish the salary of judges during their continuance in 
office. (HI, 1.) 

4. To make an attainder of treason work corruption of blood or 
forfeiture except during the life of the person attainted. (Ill, 3,2.) 

5. To erect new States out of parts of States without the consent 
of the States concern' d. (IY, 3, 2.) 

6. To impose religious tests for office. (VI, 3.) 

7. To make any law respecting an establishment of religion, or 
prohibiting the free exercise thereof, or abridging the freedom erf 
speech or of the press, or the right of the people peaceably to 
assemble and to petition the government for a redress of grievances. 
(Am. I.) 

8. To make laws infringing any of the personal rights guaranteed 


132 


PROHIBITIONS ON CONGRESS. 


[is 9 , a* 


in the first eight amendments. In all these amendments, except 
the first, Congress is not mentioned by name. The intention is to 
forbid not only Congress, but every branch of the government, legis¬ 
lative, executive and judicial, from infringing these rights. 

9. To exercise powers not given it by the Constitution expraofy 
or by implication. (Am. X.) 

10. To re-establish slavery. (Am. XIII.) 

11. To question the validity of the public debt. (Am. XIV.} 

12. To pay rebel debts or claims for slaves. (Am. XIV.) 

13. To deny or abridge the right of citizens of the United States 
to vote on account of race, color, or previous condition of servitude 
(Am. XV J 



PROHIBITIONS ON THE STATES. 


Is 10.J 


133 


PROHIBITIONS ON THE STATES. 


SECTION 10. 


PROHIBITIONS ON THE STATES. 

ANALYSIS OP THIS SECTION. 

Of OtXor prohibitions , expressed or implied in the Constitution .) 


r 


< 


r 1. To make alliances. 1, 30, fl 

2. To send out privateers. I, 10, t 

8. To coin money. I, 10, * 

4. To issue paper money, or make 
anything but gold or silver 

legal tender. I, 10, 8 

6. To pass bills of attainder. I, 10, 8 

6. To pass ex post facto laws_ 1, 10, 8 

7. To pass laws impairing the ob¬ 

ligation of contracts. I, 10, 8 

8. To grant titles of nobility. I, 10, 8 

9. To deny the citizens of other 

States the privileges ot citi¬ 
zens . IV, 8, 1 

10. To refuse to give up persons 
charged with crime in other 

States. IY, 8,1 

I. Absoluts. < 11. To refuse to give up runaway 

slaves. IY, 2, 2 


12. To re-establish slavery. Am. XIII 

13. To abridge the privileges or 

immunities of citizens of the 

United States. Am. XIV 

14. To deprive any person of life, 

liberty, or property, without 

due process of law.Am. XIV, 1 

IB. To deny any person within its 
Jurisdiction the equal protec¬ 
tion of the laws. . Am.XIV, 1 

16. To fill offices with unpardoned 

rebels.Am. XIV, 8 

17. To assume the rebel debt or 

claims for the loss of slaves. Am. XIV, 4 


< 


(I. hmsxD 


V 








18. To deny negroes the right to 

vote. 

19. To interfere with the exer¬ 

cise of any authority be¬ 
longing to the U. S. 

20. To interfere with the prop¬ 

erty of the U. S. by taxa¬ 
tion or otherwise. 

21. To lower the value of U. S. 

property by taxation. , 


Am. XV 
































184 PROHIBITIONS ON THE STATES [1: 10, 1. 


r 



III. COHDITIOXAL . 


r 


1. To levy duties on Imports and 

exports. 

2. To impose tonnage duties. 

8. To keep a standing army or 

navy. 

4. To make agreements or com¬ 
pacts with other States or 

foreign powers... 

B. To engage in war. 


L 10,* 
I, 10.8 

I, 10,8 


I, 10, 2 
I, 10. 8 


CLAUSE 1. 

ABSOLUTE PROHIBITION’S. 

No State shall enter into any treaty, alliance, or confederation; grant letters 
of marque and reprisal; coin money; emit bills of credit; make any¬ 
thing but gold and silver coin a tender in payment of debts; pass anj 
bill o? attainder, ex post facto law, or law impairing the obligation of 
contracts, or grant any title of nobility. 


I. To make alliances. — The States are forbid¬ 
den to enter into any treaty, alliance, or confederation. 
The power to make treaties is a sovereign power, and is 
rightly reserved for the United States. If the States 
could make separate treaties and alliances, there would 
soon be an end to the Union. The way would be open 
for foreign intrigues. Some States would ally them¬ 
selves with one nation, and some with another; and 
when these foreign nations were at war with one 
another, they would be drawn into the war on opposite 
sides. It would be to the interest of foreign nations to 
foment every sectional difference; and we should have 
a civil war on our hands every few years, even if we 
did not split into three or four separate nations. 

II. To ISSUE LETTERS OF MARQUE AND REPRISAL.— 
If a State could authorize privateers it could easily in¬ 
volve us in difficulties or war with foreign nations. 
Under the Articles of Confederation, each State could 
issue letters of marque and reprisal. But it is her^ 
wisely prohibited to the separate States. 










1: 10, l.j 


ABSOLUTE PROHIBITIONS. 


135 


III. To coin monet. — The power to coin money ia 
given to the United States in section 8, and is here 
taken from the States. It is an attribute of sovereignty, 
by all nations reserved for the sovereign power. That 
sovereign power in this country is the United States, not 
the several States. 

Another reason is to secure a uniform currency all 
over the United States. If each State could coin money 
there might he as many different sets of coins as there 
were States, and there would he certain to be several dif¬ 
ferent sets. Such a state of things would be very in¬ 
convenient for business. Therefore the power to coin 
money is reserved to the United States, and prohibited 
to the several States. 

IV. To issue paper money. — To “ emit bills of 
credit ” means to issue paper money. The same reasons 
that make it best to prohibit State coinage, also make it 
best to prohibit State paper money. 

Another reason is that paper money is so easily made, 
and so liable to inflation, and therefore to depreciate in 
valut, that the power to issue is a dangerous power to 
give a government. Recent experience had shown the 
framers of the Constitution the dangers of paper money. 
During the Revolutionary War the United States issued 
great quantities of paper money, which rapidly fell to 
almost nothing in value and was never redeemed. This, 
oerhaps, was necessary to raise money in war. But the 
tates after the war issued great amounts of paper 
oney, which they could not redeem. To prevent this 
the future, this clause was inserted in the Constitu- 
m. 

No State can issue paper money, whether it is made 
legal tender or not; but State bonds are not to be 
considered as paper money. But a State could, until 


136 


PROHIBITIONS ON THE STATES. 


[1. 10 , 1 . 


1863, charter banks which should issue paper money, 
which people could take or not as they chose. Since 
then the United States has assumed its prerogative on 
this subject. It has taxed the old State banks out of 
existence; it has created a system of National banks; 
and it has issued paper money, as a war measure, and 
made it a legal tender. The supreme court has decided 
that the United States cannot constitutionally issue 
paper money, except as a war measure. 

V. TO MAKE ANYTHING BUT GOLD OR SILVER LEGAL 

tender. — A legal tender is anything which must be 
accepted in payment of debts, when offered. The pres¬ 
ent paper money of the United States is such a legal 
tender. This power of making something besides gold 
and silver a legal tender, is a part of the power of con¬ 
trolling the currency which is forbidden to the States. 

But the States have the power to make gold and sil¬ 
ver legal tender, to any amount. And a State could 
make the silver coin of the United States, which if 
worth considerably less than gold, a legal tender to any 
amount, even though by the United States law it is legal 
tender only in small amounts. 

VI. To PASS BILLS OP ATTAINDER AND EX POST 
facto laws. — Bills of attainder and ex post facto laws 
are forbidden to the States as well as to the United 
States, so that such unjust laws can no more be passed 
anywhere in this country. (See page 126.) 

YII. To PASS LAWS IMPAIRING THE OBLIGATION OF 
contracts. — The States are forbidden to break con¬ 
tracts by law, but the United States can do it, and has 
done it. For instance, in the case of a bankrupt law, a 
State bankrupt law will operate only upon contracts 
made by its citizens after the law was passed. But a 



I: 10, 1.] 


ABSOLUTE PROHIBITIONS. 


137 


United States bankrupt law will release the bankrupt 
from the legal obligation for debts made before the law 
was passed as well as afterwards. 

But a contract which is for an immoral purpose, or 
which involves an immoral consideration, is never valid, 
and may always be broken. The obligation of these 
contracts is not impaired by the law annulling them, 
for they never had any obligation. 

And a State may prescribe under what conditions a 
contract shall be made, so as to cover future contracts, 
but not past ones. Thus a State may say what forms 
deeds and mortgages must have in order to be valid, but 
this will only be binding in regard to deeds and mort¬ 
gages executed after the law was passed. 

These words of the Constitution thus reserve to the 
United States the power of impairing the obligation of 
contracts, and forbids it to a State. 

VIII. Charters of corporations. 

Two famous decisions of the United States Supreme Court have 
defined the power of States over the charters of corporations. In 
the celebrated case of Dartmouth College against Woodward, in 
which Daniel Webster appeared for the College, that court decided 
that charters are in the nature of contracts between the State and 
the corporation chartered, and therefore that such charters cannot 
be repealed or amended by the State without the consent of the 
corporation. Such corporations are therefore practically perpetual. 

But a recent decision of the Supreme Court in regard to the rail¬ 
road laws of some Western States, allows the State the right to 
control railroad companies in the exercise of their chartered powers, 
so far as these are public franchises. A railroad company, because 
it has a charter, is not for that reason freed from any obligation to 
the public which a private person would have who transported 
passengers and freight (as he might do with a hack and dray). All 
common carriers, that is, persons or companies who make a busi¬ 
ness of carrying passengers or freight, can be controlled in their 
charges and their methods of management, when it is for the public 
good, and railroad companies are not exempted from this Stat# 
control because they have been chartered by the State. 




138 PROHIBITIONS ON THE STATES. [I: 10, 1. 

An additional reason exists in the case of railroads. The State 
exercise •; for them the right of eminent domain, and allows the rail- 
read to take the land needed for its track and buildings with or 
without the consent of the owners of the land. As the State thus 
gives a railroad a public franchise for the public good, it is fair that 
the same law of the public good should be exercised to prevent ex¬ 
tortion or mismanagement of a railroad so as to injure the public. 

Nor could a State legislature, by a charter to a railroad company, 
give up its right to control the tariff and the management of the 
railroads. That is a right inherent in the people, which the legis¬ 
lature, as the representatives of the people, can exercise for them, 
but which they cannot sell or give away. 

This right of the State to control corporations does not extend 
further than to the good of the public in general. But as far as 
the action of a corporation affects only its own members, and does 
not conflict with existing State laws, or with public policy, the 
State will not interfere. For instance, within these limits a State 
cannot interfere with the internal government of a church, or of a 
secret society, or of a literary association, or any other voluntary 
organization. It can protect them in their property, and prevent 
their meetings being disturbed, but will leave them to manage their 
internal affairs according to their own rules. 

IX. To grant titles of nobility. — The States as 
well as the United States are forbidden to grant any 
titles of nobility. If this is forbidden to the United 
States, it certainly ought to be forbidden to the States. 

As a historical fact, it may be interesting to know 
that no American titles of nobility have ever been 
granted, except in the famously foolish constitution 
drawn up for Carolina by the philosopher John Locke. 
These titles soon died out, and no others have ever been 
created. Persons have come to this country who held 
titles in foreign lands, and have even acquired citizen¬ 
ship here; and American citizens have been honored 
with titles abroad. But since our independence, no title 
of nobility has ever been made or recognized by our 
laws. Those who are nobles in foreign lands, here are 
simple citizens. 


1:10, 2.J 


CONDITIONAL PROHIBITIONS. 


139 


CLAUSE 2. 

CONDITIONAL PROHIBITIONS. 

No State shall, without the consent of the Congress, lay any impost* or du¬ 
ties on imports or exports, except what may be absolutely necessary for 
executing its inspection laws; and the net produce of all duties and 
imposts, laid by any SAate on imports or exports, shall be for the use of 
the treasury of the United States; and all such laws shall be subject to 
the revision and control of the Congress. 

No State shall, without the consent of Congress, lay any duty of tonnage, 
keep troops or ships of war in time of peace, enter into any agreement 
or compact with another State, or with a foreign power, or engage in 
war, unless actually invaded, or in such imminent danger as will not 
admit of delay. 

I. To LAY DUTIES ON IMPORTS AND EXPORTS.— 
Compare this with Section 8, Clause 1. If States could 
lay taxes as they pleased on imports and exports, it 
would lead to much injustice of one State toward the 
commerce of another, and much jealousy and rivalry 
between States. 

The Constitution intends to give the United States 
the complete control over foreign commerce and com¬ 
merce between the States. It would have been simpler 
to have forbidden the States absolutely from laying du¬ 
ties on exports or imports. But the convention meant 
to leave it open to Congress if they chose to let the 
States appoint revenue officers and collect duties under 
United States laws. The States had been collecting 
duties for themselves. And it might be convenient for 
a time to still leave it to the States, only making the 
duties uniform and paying the net revenue from duties 
into the United States treasury. 

But Congress at once assumed the power of laying 
duties, and has never consented since to give up any 
part of that power to the States. The States have 
Aever collected duties under this clause, and probably 
*tover will. 


V 


140 PROHIBITIONS ON THE STATES. [1:10, 2. 

But the States may pass inspection laws to secure 
good measure in goods offered for sale, or to prevent 
goods dangerous to health being sold. And they may 
charge fees for the inspection; enough to pay the ex¬ 
penses of the inspector, and no more. 

II. To impose tonnage duties. — Duties of ton¬ 
nage are duties on ships according to the amount of 
freight they can carry. The tonnage is the amount of 
freight they can carry; thus a ship of a hundred tons 
burden is one that can carry a hundred tons of freight. 
A tonnage duty is a duty on commerce, and it is put 
under the control of Congress like all that relates to 
commerce. The consent of Congress is necessary before 
a State can lay a tonnage. 

III. To KEEP A STANDING ARMY OR NAVY.— No 
State can keep an army or navy in time of peace, with¬ 
out the consent of Congress. The national govern¬ 
ment usually will reserve that right to itself. But 
should an extraordinary occasion arise, Congress has 
the power to authorize a State or States to keep troops 
or ships of war in time of peace. In time of war, it 
may be very necessary for a State to raise an army or 
a navy for its own defense and that of other States. 
In that case the consent of Congress need not be asked 
for. 

It is not intended by the words u keep troops 11 to 
prevent States organizing and arming their militia in 
time of peace, as well as war. 1 It is a standing army 
that is forbidden. 

I V. TO MAKE AGREEMENTS AND COMPACTS. — How do 
the agreements and compacts named here differ from 
the treaties, alliances and confederations named in the 




1 Compare Section 8, Clause 16, of this Article, and Amendment II. 





1: 10, 2.J 


CONDITIONAL PROHIBITIONS. 


141 


first clause of this section? In the one case, a State is 
prohibited absolutely from making them; in the other 
case, it is only required to gain the consent of Congress. 

The natural interpretation is, that these compacts and 
agreements refer only to such business transactions as 
States sometimes must have, as well as private individ¬ 
uals; while treaties, alliances and confederations refer 
to political agreements. The latter are absolutely for¬ 
bidden to the States. 

No State can hold tiny political relations whatever, 
except as a member of the Union. It cannot have any 
political relations with other States or with foreign 
nations. That is all reserved for the United States. But 
a State may have business relations with other States, 
or with foreign powers. But as these could easily pas3 
into political relations, the power is reserved to the 
United States to control these business relations. Ex¬ 
amples of business relations between the States are, 
“ questions of boundary, interests in land situated in 
the territory of each other, and other internal regula¬ 
tions for the mutual comfort and convenience of States 
bordering on each other. Such compacts have been 
made since the adoption of the Constitution.” (Story.) 

The consent of Congress to such compacts need not 
be expressed. It may be inferred from the legislation 
of Congress on the subject. 1 

V. To engage in war. — A State may engage in 
war, if actually invaded or threatened with invasion; 
and as the necessity would be pressing, it would not be 
needful to wait for the United States authorities; but 
the State could defend itself at once with all the force 
at its command. But unless in self-defense, a State can¬ 
not make war, but must wait the decision of the United 


» Virginia v». West Virginia, 11 Wall. 39. 




142 


PROHIBITIONS ON THE STATES. [I: 10, 2. 

States government. If Congress should ever authorize 
one or more States to engage in war, it would not be a 
State war, but a United States war. There is no way in 
which some of the States can get into a war, defensive 
or offensive, without involving the rest in it too. If a 
State is invaded, it is also the United States which is 
invaded, and not only the State but the United States 
which will resent the invasion. If a State goes to war, 
the United States is responsible for it, and must either 
uphold it, or put a stop to the war at once. The Con¬ 
stitution thus gives each State the right of self-defense, 
but reserves all other powers of war to the United 
States. 

VI. Other prohibitions on the states. — In 
other parts of the Constitution, the States are prohib¬ 
ited from the following things: 

1. To deny the citizens of another State the privileges of a citi¬ 
zen. This is implied in Art. IV, Sec. 2, Clause 1. 

2. To refuse to give up persons charged with crime in other States. 
This is implied in Art. IV, Sec. 2, Clause 1. 

3. To refuse to give up a person held to service in another State. 
This is implied in Art. IV, Sec. 2, Clause 2. As slavery is now 
abolished, this provision is now practically obsolete. 

4. To re-establish slavery. (Amendment XIII.) 

5. To abridge the privileges or immunities of citizens of the 
United States. (Amendment XIV, Clause 1.) 

6. To deprive any person of life, liberty or property without due 
process of law. (Amendment XIV, Clause 1.) 

7. To deny any person within its jurisdiction the equal protection 
of the laws. (Amendment XIV, Clause 1.) 

8. To fill offices with unpardoned rebels. (Amendment XIV, 
Clause 3.) 

9. To assume the rebel debt or claims for the loss of slaves. 
(Amendment XIV, Clause 4.) 

10. To deny the right of citizens of the United States to vote on 
account of race, color or previous condition of servitude. (Amend¬ 
ment XV.) 


*» 10. 2.J 


CONDITIONAL PROHIBITIONS. 


143 


The Supreme Court has also decided that the following powers 
aie denied to the States, by implication: 

1. To interfere with the exercise of any authority belonging to 
the United States. 

2. To interfere with the property of the United States by taxation 
or otherwise. 

S. To lower the value of United States bonds or paper money by 
taxation. 


U4 


THE EXECUTIVE DEPARTMENT. 


m, 


ARTICLE II. 


THE EXECUTIVE DEPARTMENT. 

44 Ac for an absolute monarchy, as It Is called (that is to say, when the whoH 
state Is wholly subject to the will of one person, namely, the king), it seems 
to many to be unnatural that one man should have the entire rule over his 
fellow citizens, when the state consists of equals. * * * And for this 

reason it is as much a man’s duty to submit to command, as to assume it, 
and this also by rotation; for this is law, for order is law; and it is more 
proper that the law should govern than any one of the citizens. Upon 
the same principle, if it is advantageous to place the supreme power in 
some particular persons, they should be appointed to be only guardians 
and servants of the laws."— Aristotle, Politics, Book III, ch. 16. 


I. The executive department carries out the 
laws. — As the legislative department of the govern¬ 
ment is to make the laws, so the executive department 
of the government is to carry out and enforce the laws. 
In making laws we need deliberation, and the combined 
wisdom of many. In executing the laws we need the 
decision and force which a single will can give. There¬ 
fore, as the legislative power is vested in a Congress of 
two houses, each composed of many persons, represent¬ 
ing all parts of the country and all interests, so the 
executive power is vested in one person, assisted by 
many others under his direction. 

The chief executive of this country is not called king 
or emperor, because that would imply that he inherited 
his place as of right. He is called simply President. 

II. The executive power is made distinct from 

AND INDEPENDENT OF THE LEGISLATIVE. — Under the 
Confederation, Congress when in session was the exccn- 





THE EXECUTIVE DEPARTMENT. 


145 


IL] 

tive as well as the legislative department of the gov¬ 
ernment, and when Congress was not in session, a 
committee of Congress was the executive. It was found 
by experience that the legislative and executive powers 
could not be combined profitably. Besides the general 
weakness of the government under the Confederation, 
there was a special weakness of action. Congress could 
pass laws and resolutions, but it could not put them 
into effect. So keenly was this felt, that no opposition 
was made in the Constitutional Convention to an execu¬ 
tive distinct from and independent of Congress. We 
thus returned to the usual form of representative gov¬ 
ernments, a government in which the power that makes 
the laws and the power that executes them are kept 
distinct from and independent of each other. This was 
the form of the English government, and of the colonial 
governments. 

In the case of those States which during and after 
the Revolution made their executives dependent on their 
legislatures, experience had shown the same defect as 
in the Confederation. And these States also soon 
leturned to the typical form of representative govern¬ 
ment — a government consisting of three distinct parts, 
legislative, executive and judicial, each independent of 
the other. 

IV. The executive power is vested in one man.— 
The essential thing in a good executive is energy of 
action. This can only be secured by putting power and 
responsibility in the hands of one man. No council or 
committee will act with such decision, steadfastness, 
secrecy, activity and dispatch as one competent man 
will do. 

Where several persons are associated together in any 
governing body, there are sure to be differences of opin- 


j 


146 


THE EXECUTIVE DEPARTMENT. 


[IL 


ions and party spirit, and there are apt to be personal 
jealousies and secret intrigues. These are fatal to any 
prompt or decisive action, which is the very thing needed 
in an executive. The experience of the Confederation 
taught the framers of the Constitution that it is safer 
to put the executive power in the hands of one man 
than to vest it in a council. The experience of all civil¬ 
ized governments confirms this. 

V. The executive is made responsible to the 
people. — An irresponsible, unlimited executive is a 
despotism. The executive ought to have power, but 
not irresponsible or unlimited power. If the President 
could not be called to account for his actions, he would 
be able to do what he pleased, and usurp power in on* 
way or another, until he became Monarch of a kingdom 
instead of President of a republic. 

The President is limited in his powers by this Consti¬ 
tution, which defines his duties. Should he overstep 
that limit, or otherwise grossly betray the trust confided 
in him by the people, he could be impeached and re¬ 
moved from office. 

But he is held responsible to the people in a far more 
effectual way by being elected for a limited term. The 
fact of election gives the people an opportunity to have 
such a President as the majority of them wish. Even 
if they should be deceived in their choice, or if the Pres¬ 
ident, after his election, should be led astray by some 
foolish policy, or some ambitious design, he cannot do 
much mischief, or get many persons to help him in any 
very foolish or dangerous designs in the short time he 
has to rule. 

On the other hand, the hope of re-election will lead a 
President to perform the duties of his office, and to 
carry out the wishes of the people as faithfully as he 



rHE EXECUTIVE DEPARTMENT. 


n.] 


147 


can. Thus the executive is limited and made respon¬ 
sible: 

1. By tho fear of impeachment. 

2. By being the choice of the nation. 

3. By his term of office being short. 

4. By his hope of re-election. 

VI. All executive officers are agents of the 

PRESIDENT. 

The executive power is vested in the President. But of course it 
is impossible for him to do everything himself. Nearly all the work 
of the executive department is done by officers of various kinds. As 
these officers are appointed by the President, or by other officers 
whom he appoints, and as they may be removed at pleasure, 1 they 
are for all practical purposes his agents or clerks, and what they do 
he may be said to do. For instance, the act of collecting the cus¬ 
tom duties is an executive act. The President, however, cannot 
collect those duties himself in all the ports of the United States. 
But he appoints the Collector of Customs and his chief assistant in 
each port, who, with the assistance of clerks working under their 
direction, collect the customs. But as these officers are responsible 
to the President for the faithful performance of their duties, and 
can be removed by him, it is really the President who collects the 
customs. If there is corruption and mismanagement in the New 
York Custom House, for instance, it is the President’s duty to see 
that it is stopped, by removing the guilty officers; and if he does 
not do so, he makes himself responsible for the corruption. So also 
with every branch of the service. The executive power is vested in 
the President, but that power is earned into effect by the various 
executive officers. 

But these officers are not merely agents of the President; they are 
agents of the people. The executive power is entrusted to the Presi¬ 
dent to be used for the public good, and according to law. These 
officers are not merely subject to the President; they are also sub¬ 
ject to the law; and therefore, in some degree, to the law-making 
body. Congress controls the subordinate executive officers in the 
following ways: 

1. Congress creates by law the offices which they fill. 


> For the limitation* on the President's power of appointment and removal, 
see pages 185-190. 




148 THE EXECUTIVE DEPARTMENT. [IL 

2. Congress can abolish any of these offices by law, and thus in¬ 
directly remove an officer. 

8. These officers are paid by appropriations made by act of Con¬ 
gress, which may be withheld, and the officers thus be compelled to 
resign, for lack of pay. 

4. Congress, or either House, can appoint an investigating com¬ 
mittee, who will examine into the conduct of any officers of the gov¬ 
ernment, and publish the results to the people; thus if reform is 
needed, rousing public sentiment to demand a reform. 

5. Congress, or either House, can pass a resolution requesting 
the President to remove certain officers. 

6. In cases of flagrant misconduct, if the President should refuse 
to remove the guilty official, the House of Representatives can im¬ 
peach him; and, if found guilty by the Senate, he will be removed 
from office. 

In one or more of these ways, Congress can, to a large extent, pre¬ 
vent or punish corruption or treason in office. If the President 
should undertake to carry out some foolish or ambitious project, he 
would need the assistance of many officials to do it. But Congress 
can always interfere with any such designs, by some of the methods 
named above. In addition to this, the Senate has also a share iu th® 
President’s appointments, as we shall see. 


THE PRESIDENT. 


ns i.j 


ORGANIZATION. 


14a 


SECTION L 

ORGANIZATION. 

ANALYSIS OP THIS SECTION. 
I. T*rx or Omci — four years..... 


n. 


QUAIilTICA- 
TIOS9 .... 


1. Preiidential 
Hector* . 


in. Eusonov.. * 


(a.) Age —35 years. 

(b.) Citizenship — natural born citizen, 
(c.) Residence —14 years in the U. S... 

(a.) Number equal 
to the Sena¬ 
tors and Rep- 
resentati v es 
of each State, 
(b.) Chosen as leg- 
lslature of 
each State di¬ 
rects . 

(c.) Cong ressmen 
and U. S. offi¬ 
cers disquali¬ 
fied . 

(a.) Fixed by Con¬ 
gress . 

(b.) Uniform 
through the 

U. S. 

(a.) Fixed by Con¬ 
gress . 

(b.) Uniform 
through the 

U. S. 

(a.) Meet in respec¬ 
tive States... 
(b.) Vote by ballot 
(c.) Separately for 
President 
and Vice 
President ... 
(d.) Both cannot be 
of the same 
■ State as them¬ 
selves . 

(e.) A maj ority 

elects.. 

(f.) They vote but 
once. 


2. Tim* Qf Moot¬ 
ing Hector*. 


3. Tim* tf their 
meeting .... 


n, 1,1 
H, 1,3 
II, 1, 5 

n, i,a 


4. Election of 
elector* . 


II, 1,3 

11,1,* 

11.1.3 
U, L 4 

II. M 

11.1.4 

11,1,4 

Am. XII 

Am. XII 

• 

Am. XII 

Am. XII 
Am. XII 

Am. XII 



















THE PRESIDENT. 


150 


THE EXECUTIVE DEPARTMENT, 


[II: 1* 




r 


5. Canvassing the 
returns . 


(a.) Returns sent 
to President 

of Senate_ Ant. Ill 

(b.) Opened in pres¬ 
ence of Con¬ 
gress . Am. XII 

(c.) And counted.. Am. XII 


III. Election.. 


6. Election by 
Route of 
Representa¬ 
tives . 


< 




(a.) Only in case no 
person has a 
majority of 
the electoral 

votes .Am. XII 

(b.) Must choose 
amon g the 
three highest Am. XII 

(c.) By ballot. Am. XII 

(d.) Each State has 

one vote. Am. XII 

(e.) Quorum—two- 
thirds of the 

States.Am. XU 

(£.) Majority of all 
the States 
necessary to 
a choice. Am. XU 


IT. Bjllabt... 


(a.) Fixed by law. II, 1, T 

(b.) Not increased or diminished during 

his term of office. II, 1, T 

(c.) No other emolument.. II, 1,7 


V. Oath or Omci 


n. 


VI. Rxhoyablh < 


(a.) For high crimes and misdemeanor* 
(b.) On impeachment by House of Rep¬ 
resentatives . 

(c.) And conviction by the Senate....*. 


VIL Dutucs. (See Sections 2 and 3.) 


n, 4 

i* 

I* *, 7 


YIII. Vacancies 


r (a.) Filled by Vice President, if there be 

one.. 

| (b.) Or by such officer as Congress has 
^ by law appointed .. 


n, it* 

II* I,® 


V 

























ORGANIZATION. 


nsij 


151 


H 

'A 

Q 

*—i 

£ <( 

sq 

w 

M 

K* 

Ed 

M 

H 


I. Term of Office — same as President 
II. Qualifications — same as President.. 


r 1. Same as President. 

EXCEPT— 


III. Election.. 


II, 1, 1 

Am. XII 
Am. XU 


2. Election by 

Senate . 


(a.) Only in case no 
person has a 
majority of 
the electoral 

votes.Am. ytt 

(b.) Must choose 
between the 
two highest.. Am. XU 
(C.) Quorum—two- 
thirds of 
whole num¬ 
ber of Sena¬ 
tors . Am. TTf 

(d.) Majority of all 
the Senators 
needed to 
elect.■ Am. XII 


IV. Oath of Office . yi^ g 

V. Removable —same as President... 11,4 

{ 1. As President of the Senate with cast¬ 
ing vote.. I, 3,4 

2. Become President in case of vacancy. II, 1, • 

VII. Vacancies— not filled.. II, 1,4 


CLAUSE 1. 

IN WHOM VESTED. 

The executive power shall be vested in a President of the United 8tates of 
America. He shall hold his office during the term of four years, and 
together with the Vice President, chosen for the same term, be elected 
aa follows. 

L Term oe office. — The President’s term of office 
is four years. This is twice as long as that of a Repre¬ 
sentative, and two-thirds as long as that of a Senator. 
The term of office of President, Vice President, Repre¬ 
sentatives and Senators begins and ends on the fourth 
of March in the odd years (except when a vacancy if 


















152 


THE PRESIDENT. 


[Hi 1. 


filled). On the fourth of March, at noon, in every odd 
year, the terms of office of all Representatives and of 
one-third of the Senators come to an end, and the terms 
of office of their successors begin. Every other odd 
year, on the fourth of March, at noon, the terms of 
office of the President and Vice President also come to 
an end, and the terms of office of their successors begin. 
As the election for President and Vice President takes 
place every leap year, this term of office begins on the 
fourth of March in the year next following each leap 
year. With this clue, the student can easily remember 
the years of each Presidential term, except where cut 
short by death. 

II. Re-election of the president. — The letter of 
the Constitution does not forbid the re-election of a Pres¬ 
ident any number of times. But it has become a well 
understood custom, though never formally enacted, that 
the President may be re-elected once, but no more. 
This custom was begun by Washington when he de¬ 
clined a third term, on the ground that two terms are 
enough for a President. It was confirmed by the action 
of Jefferson in also declining a third term, and by the 
constant practice of the country since then. Some 
Presidents have wished a third term, but the people have 
refused to grant it. It may now be considered a settled 
part of the unwritten Constitution, that a President may 
be elected twice, but no more. 

III. The vice president. — The Vice President is 
elected for two purposes: 

1. To fill the place of President, when there is a va¬ 
cancy in that office. 

2. To preside over the Senate meanwhile. When the 
Vice President becomes President, he does not preside 
over the Senate. 


II: 1, 2.] 


PRESIDENTIAL ELECTORS. 


15S 

Four cases have occurred in which the Vice Presi¬ 
dent has become President. At the death of President 
Harrison, Vice President Tyler became President; at 
the death of President Taylor, Vice President Fillmore 
became President; at the death of President Lincoln, 
Vice President Johnson became President; at the death 
of President Garfield, Vice President Arthur became 
President. No case has occurred in which the Vice 
President has become President for any other reason 
than the death of the President 

CLAUSE 2. 

PRESIDENTIAL ELECTORS. 


'Each State shall appoint, in such manner as the legislature thereof may di¬ 
rect. a number of electors, equal to the whole number of Senators and 
Representatives to which the State maybe entitled in the Congress; but 
no Senator or Representative, or person holding an office of trust or 
profit under the United States, shall be appointed an elector. 

I. The president elected indirectly. — In the 
Constitutional Convention, it was first voted that the 
President should be elected by Congress. But on fur¬ 
ther consideration, the plan was adopted of electing 
him by presidential electors. The Convention did not 
intend that the President should be elected by the 
people. They thought that the chief of the nation 
ought not to be elected by the passions and prejudices 
that often control a popular election; but by the calm 
judgment of a few of the best men of each State. 

The idea was a fine one in theory; but in practice it 
did not work as its authors expected it would. In 
actual practice the President is elected by the people 
indirectly. The electors are always pledged beforehand 
to vote for certain persons for President and Vice Pres¬ 
ident; and they are only so chosen because they are so 


154 the PRESIDENT. [II: 1, 

pledged. The presidential electors have never failed to 
vote for the candidate of their party. 1 

II. Appointment of presidential electors.— The 
manner of choosing presidential electors is left to the 
several States. The following different methods have 
been followed in some or all of the States: 

1. They have been chosen by the State legislature. 
This Avas the usual method at first. 

2. They have been chosen in several States by the 
people voting by districts. This is the fairest method, 
and represents the will of the people most accurately. 
Under this plan, a State will generally choose some of 
its electors from one party and some from the other, 
while under either of the other plans, the party which 
has a majority, however small, in the State, will carry 
all the electoral votes of the State. 

3. They are now chosen in all the States by vote of 
the people on a general ticket. Whichever party car¬ 
ries the State, has all the electoral votes of the State.* * 

III. Qualifications of presidential electors.— 
Only one qualification is prescribed. No Senator or 
Representative, or any United States officer, can be a 
presidential elector. This was intended to keep the 
electors as free as possible from personal interests in the 
result of the election. But as electors now are only 
machines to cast certain votes, this provision is of no 
practical importance. It has been evaded in various 
ways. 

1 Except in the case of the death of Horace Greeley, who died after the 
electors were appointed, and before they met. In that case the Democratic 
electors voted for several different persons, according to their own individual 
preferences. 

* The case has happened, where there were three or more parties, that two 
have combined in a State against a third on an electoral ticket divided be¬ 
tween the two parties. That is the only way in which the vote of a State 
has been divided under the present practice. 


/ 


s 




II: 1, 3.] 


ELECTION. 


155 


IV. Number of presidential electors. — This is 
the same as the number of Senators and Representatives 
to which the State is entitled in Congress. The small 
States thus have a greater voice in the election of 
President than their population would entitle them to 

CLAUSE 3. 

ELECTION OF PRESIDENT AND VICE PRESIDENT. 

TWELFTH AMENDMENT. 

The electors shall meet in their respective States and vote by ballot for Presi¬ 
dent and Vice President, one of whom, at least, shall not be an inhabitant 
of the same State with themselves; they shall name in their ballots th® 
person voted for as President, and in distinct ballots the person voted 
for as Vice President, and they shall make distinct lists of all persons 
voted for as President, and of all persons voted for as Vice President, and 
of the number of votes for each; which lists they shall sign and certify, 
and transmit sealed to the seat of government of the United States, di¬ 
rected to the President of the Senate. The President of the Senate shall 
in the presence of the Senate and House of Representatives, open all th® 
certificates, and the votes shall then be counted; the person having the 
greatest number of votes for President shall be the President, if such 
number be a majority of the whole number of electors appointed; and if 
no person have such majority, then from the persons having the highest 
numbers not exceeding three on the list of tnose voted for as President, 
the House of Representatives shall choose immediately, by ballot, the 
President. But in choosing the President, the votes shall be taken by 
States, the representation from each State having one vote; a quorum 
for this purpose shall consist of a member or members from two-thirds 
of the States, and a majority of all the States shall be necessary to a 
choice. And if the House of Representatives shall not choose a Presi¬ 
dent whenever the right of choice shall devolve upon them, before the 
fourth day of March, next following, then the Vice President shall act as 
President, as in the case of the death or other constitutional disability of 
the President. 

■Pb# person having the greatest number of votes as Vice President, shall b 
the Vice President, if such number be a majority of the whole number o 
•lectors appointed, and if n# person have a majority, then from th 
two highest numbers on the list, the Senate shall choose the Vice Presi¬ 
dent; a quorum for the purpose shall consist of two-thirds of the whole 
number of Senators, and a majority of the whole number shall be neces¬ 
sary to a choice. But no person constitutionally ineligible to the ollic® 
of President shall he eligible to that of Vice President of the United 
Mates. 


156 


THE PRESIDENT. 


[II: 1,8. 


A. The First Process. 

I. Election - by the electors. — The presidential 
electors thus chosen, elect a President and Vice Presi¬ 
dent, if they can, under the following restrictions: 

1. They meet in their respective States. They do not 
all meet in one place. They meet in their own States, 
and usually at the State capitals. The object of this is to 
prevent bargaining for votes, which would be easy if 
they all met in the same place. Vacancies in the Col¬ 
lege of Electors in any State are filled in such way as 
that State has prescribed by law. This is done in many 
States by the electors themselves. If a vacancy exists 
by reason of death, absence, or ineligibility of an elector, 
the College of Electors select some one to fill the 
vacancy, and then proceed to vote for President and 
Vice President. 

2. They vote by ballot. The vote by ballot is fre¬ 
quently used in elections in the United States, for the 
purpose of allowing the voter to conceal his vote, and 
thus to be more independent. It is used for that pur¬ 
pose here. But as the presidential electors have ceased 
to be independent voters, and as every one knows how 
they will vote, long before they meet, this provision is 
practically useless. 

3. They ballot for President and Vice President sep¬ 
arately. This prevents any mistakes or confusion in 
voting. 

4. Only one of these can live in the same State with 
themselves. This is to prevent both President and Vice 
President being from the same State. They have usu¬ 
ally been not only from different States, but from dif¬ 
ferent sections of the country. 

5. A majority of the electors is required to elect. A 
majority is more than half of the whole number of 


II: 1, 3.] 


ELECTION. 


157 


votes. A candidate may have the largest number of 
votes and not have a majority, and thus fail to be elected 
by the electors. 

6. The electors vote but once. This follows from 
their meeting in different places. Before the invention 
of the telegraph, it would have been impossible to have 
even got the news of the result in time to vote a second 
time, if there was no election the first time. And even 
now, it would be quite inconvenient for thirty-eight 
sets of men, meeting in thirty-eight different places, to 
keep on voting and announcing the results of the ballot. 
The electors must therefore elect a President or Vice 
President on the first ballot, or not at all. 

II. Counting the votes. — The votes thus cast are 
counted as follows: 

1. The electors in each State make a list of all per¬ 
sons voted for by them for President and a list of all 
persons voted for by them for Vice President. They 
sign these lists and certify that they are genuine. All 
the electors in each State sign and certify these lists. 

2. Three sets of these lists exactly alike are made out, 
of which one is sent to the President of the Senate by 
mail, another by special messenger, and the third is de¬ 
livered to the judge of the United States district court 
for the district in which the electors meet. If the cer¬ 
tificates of election from any State are not received by 
the fourth Monday in January, the Secretary of State 
is required to send a special messenger to the district 
judge for the certificate in his possession. 

3. The President of the Senate, who may or may not 
be the Vice President (I, 3; 4 and 5), presides over a 
joint convention of the Senate and House of Repre¬ 
sentatives. In their presence he opens the certificates, 
which are read by clerks, and the votes for each candi- 


158 


THE PRESIDENT. 


[11:1, 8 , 


uate are added up and announced by tellers appointed 
from each House. No provision is made for the case of 
a disputed election of presidential electors in any State. 
This fact led to the contested presidential election of 
1876. 

4. If any candidate for President is found to have a 
majority of all the electoral votes cast for President, he 
is thereupon declared elected. And if any candidate 
for Vice President is found to have a majority of all the 
electoral votes cast for Vice President, he is declared 
elected Vice President. If in either case no one has a 
majority, there is no election by the electors. 

B. Second Process. 

III. Election of president by the house of 
representatives. — When the presidential electors fail 
to elect a President, the right of election goes to the 
House of Representatives under the following condi¬ 
tions: 

1. No candidate can be voted for except the three who 
received the highest number of votes for President. 

2. The vote is by ballot. 

3. The vote is by States, each State having one vote. 
The vote of each State is given as the majority of the 
members from that State who are present may direct. 
If the vote of a State is equally divided, that fact is re¬ 
ported, and the vote of that State is not given to any 
candidate. 

4. A quorum for the purpose of voting for a Presi¬ 
dent must consist of a member or members from two- 
thirds of the States. A quorum for ordinary purposes 
consists of a majority of the members elected. 

5. A majority of all the States is necessary to a choice. 
If a State is divided, its vote helps to prevent an election. 
Thus in 1801, when the election was thrown into the 


II: 1, 3.J 


ELECT! iON. 


159 


House of Representatives, there were sixteen States; of 
these, eight voted for Jefferson, six for Burr, and two 
were divided. There was therefore no election. Thirty- 
live times the House voted with the same result. On 
the thirty-sixth ballot, some members from the two 
divided States who had voted for Burr, purposely left 
the room. The members from those States who re¬ 
mained could then give a majority in each for Jefferson, 
so that he had ten States and Burr six, and Jefferson 
was elected. 

6. The House must proceed at once to elect a Presi¬ 
dent. If they fail to elect before the fourth of March, 
then the Vice President just elected becomes President. 
The reasons for this are, that the President’s term of 
office must begin on the fourth of March, and that the 
House of Representatives ceases to exist on the same 
day, and the new House comes into power. 

IV. Election oe vice president by the senate.— 
When the presidential electors fail to elect a Vice 
President, the choice devolves upon the Senate, under 
the following conditions: 

1. No candidate can be voted for except the two who 
received the highest number of votes for Vice President. 
This ensures a speedy election. 

2. A quorum to elect a Vice President is two-thirds 
of the whole number of Senators. 

3. A majority of all the Senators is necessary to a 
choice. It is not merely a majority of all present, but 
a majority of all. 

Y. The old method op electing president and 

VICE PRESIDENT. 

When the Constitution was first adopted, it prescribed a method 
of electing President and Vice President, somewhat different from 
the one now in use. The new method was adopted bj an amend- 


160 


THE PRESIDENT. 


[II: 1, So 


ment to the Constitution in 1804, in consequence of the danger to 
the country shown in the disputed election of 1801. The Constitu¬ 
tion originally read as follows: 

The electors shall meet In their respective States, and vote by ballot for 
two persons, of whom one at least shall not bo an inhabitant of the same 
State with themselves. And they shall make a list of all the persons voted 
for, and of the number of votes for each; which list they shall sign and cer¬ 
tify, and transmit, sealed, to the seat of the government of the United States, 
directed to the President of the Senate. The President of the Senate shall, 
In the presence of the Senate and House of Representatives, open all the 
certificates, and the votes shall then be counted. The person having the 
greatest number of votes shall be the President, if such number be a ma¬ 
jority of the whole number of electors appointed; and if there be more than 
one who have such a majority, and have an equal number of votes, then the 
House of Representatives shall immediately choose by ballot one of them 
President, and if no person have a majority, then from the five highest on the 
list the said House shall in like manner choose the President. But in choos¬ 
ing the President, the votes shall be taken by States, the representation 
from each State having one vote; a quorum for this purpose shall consist of 
a member or members from two-thirds of the States, and a majority of all 
the States shall be necessary to a choice. In every case, after the choice of 
the President, the person having the greatest number of votes of the elect¬ 
ors, shall be the Vice President. But if there should remain two or mors 
who have equal votes, the Senate shall choose from them by ballot the Vice 
President. 

The following is an analysis of this method of election, with a 
comparison with the method now in use: 

A. First Process. 

Election by the electors. — The electors having been chosen 
in such way as the several States have prescribed, proceed to elect 
a President and Vice President, if they can, under the following 
conditions: 

1. They meet in their respective States. This provision is still 
retained. 

2. They vote by ballot. This provision is still retained. 

3. They vote for two persons. They did not designate which of 
the two they wished to be President and which Vice President. 
This was a fatal defect, as the election of 1801 showed. The ma¬ 
jority of the electors wished Jefferson to be President and Burr 
Vice President, but both received the same number of votes, and 
Burr ca»u? near being elected President by the House of Represent- 



ELECTION. 


II: 1, 8.] 


161 


atives. This defect is remedied in the amended mode of electing 
President and Vice President. 

4. A majority was required, then as now, to elect a President. 
But as each elector had two votes, the majority required was not a 
majority of all the votes, but a majority of all the electors. But a 
majority was not required to elect a Vice President. The person 
having the second highest number of votes was in any case to be 
Vice President. 

Counting tub votes. — No change has been made in this. 

B. Second Process. 

Election of president. — If no person had a majority of all 
the electoral votes, or if two had a majority and both had the 6am© 
number, then the House of Representatives proceeded to choose a 
President under the following conditions: 

1. If two candidates each were voted for by a majority of all tha 
electors, and had the same number of votes, then the House must 
choose between these two. This was the case in the celebrated 
election of 1801. This case would be impossible as the Constitution 
now stands, and therefore is not provided for. 

2. If no candidate was voted for by a majority of the electors, 
then the House must choose from the five highest on the list This 
is now changed to the three highest. 

3. The vote was by ballot, then as now. 

4. The vote was by States, then as now. 

5. The quorum remains the same. 

6. A majority of all the States was necessary to a choice, then 
as now. 

7. The House was required to proceed to an election immedi¬ 
ately. This has not been changed. 

8. No provision was made for the case of the House of Repre¬ 
sentatives failing to elect before the fourth of March. The election 
of 1801 showed this to be necessaiy. It is now provided for. 

Election of vice president. — Under the old plan, it would 
be unlikely that the Senate would ever be called on to elect a Vice 
^resident. After the President was elected, either by the electors 
or hy the House of Representatives, the candidate who stood equal 
or next highest on the list became Vice President, whether he had 
a majority of electoral votes or not. The only case in which the 
Senate would be called on to select a Vice President, would have 


K 



162 


THE PRESIDENT. 


[II: 1, 3. 


been when two stood next on the list to the President-elect, and 
both had the same number of electoral votes. In that case the 
Senate was to choose between these two by ballot. 

As the Vice President is now voted for separately from the Presi¬ 
dent, it is provided that a majority of electoral votes is necessary to 
elect a Vice President; that if no person has a majority, the Senate 
elect by ballot from the two highest; that a quorum shall consist 
of two-thirds of the Senators, and a majority of all the Senators 
shall be necessary to a choice. 

The essential difference between the old plan and the new is, that 
under the old plan each elector voted for two persons, without say¬ 
ing which one he wished for President or Vice President, while 
under the present plan each elector votes for two persons, distinctly 
naming one for President and the other for Vice President. All the 
other changes are such as are made necessary to carry out this 
change. 

Under the old plan, the President might easily be of one polit¬ 
ical party, and the Vice President of the other party. But under 
the present plan, that could only occur in case the presidential 
electors failed to elect, and the Senate and House of Representa¬ 
tives were controlled by opposite parties. 

VI. The disputed election of 1876. 

Just as the disputed election in 1801 called the attention of th* 
country to one defect in the Constitutional provision for the election 
of President and Vice President and led to the twelfth amendment, 
so another disputed election called the attention of the country to 
another defect, and will probably lead to another amendment of the 
Constitution. 

No provision is made in the Constitution for the case of a dis¬ 
puted election in a State. It was intended that the certificate of 
the proper officer in each State should attest the election of the 
electors, and that their certificate should attest their own vote. An 
extraordinary case arose in 1877, when Hayes and Tilden, the rival 
candidates, each had a certificate of election from a set of electors 
in several States. As the Senate and House were controlled by op¬ 
posite parties, neither would yield. Just before the time for count¬ 
ing the votes, an extraordinary tribunal was created, consisting of 
five Senators, five Representatives, and five Judges of the Supreme 
Court, to whose decision these contested cases were referred. All of 
them were decided in favor of Hayes, and he was declared elected 
President by one majority. 


II: 1, 8.J 


ELECTION. 


163 


It was claimed by one ride that the Constitution gave the Presi¬ 
dent of the Senate the right to decide which were the legal elect¬ 
oral votes. And it was claimed by the other side that Congress or 
either House could refuse to receive the vote of any State, where 
there was a dispute in regard to it. Both these claims were pre¬ 
posterous. The fact is, the Constitution is defective at this point, in 
not providing for the contingency, and it should be amended. 

VII. List of the presidents: 


Inaug¬ 

urated. 


Name. 


1789 

1793 

1797 

1801 

1805 

1809 

1813 

1817 

1821 

1825 

1829 

1833 

1837 

1841 -j 

1845 

1849 j 

1850 | 
1853 
1857 
1801 

1805-j 

1869 
1873 
. 1877 

1881 j- 

1885 

1889 


George Washington. 

George Washington. 

John Adams . . 

Thomas Jefferson . 

Thomas Jefferson. 

James Madison. 

James Madison. 

James Monroe. 

James Monroe. 

John Quincy Adams.... 

Andrew Jackson. 

Andrew Jackson. 

Martin Van Buren . 

William llenry Harrison 

John Tyler. 

James K. Polk. 

Zachary Taylor. 

Millard Fillmore. 

Franklin Pierce..*. 

James Buchanan. 

Abraham Lincoln. 

Abraham Lincoln. 

Andrew Johnson. 

Ulysses S. Grant. — ... 

Ulysses S. Grant. 

Rutherford B. Hayes.... 

James A. Garfield. 

Chester A. Arthur. 

Grover Cleveland. 

Benjamin Harrison. 


State. 


By what 
electe 



Virginia. 

Virginia__ 

Massachusetts . 

Virginia. 

Virginia . 

Virginia. 

Virginia. 

Virginia. 

Virginia. 

Massachusetts ... 

Tennessee. 

Tennessee. 

New York. 

Ohio.. 

Virginia. 

Tennessee . 

Louisiana 

New York. 

New Hampshire. 
Pennsylvania .... 

Illinois . 

Illinois.... 

Tennessee . 

Illinois. 

Illinois. 

Ohio. 

Ohio. 

New York. 

New York. 

Indiana. 


All parties. 

All parties. 

Federalist. 

Republican. 

Republican. 

Republican. 

Republican. 

Republican. 

Republican. 

Republican. 

Democrat. 

Democrat. 

Democrat. 

Whig. 

Whig. 

Democrat. 

Whig. 

Whig. 

Democrat. 

Democrat. 

Republican. 

Republican. 

Republican. 

Republican. 

Republican. 

Republican. 

Republican. 

Republican. 

Democrat. 

Republican. 


\ 


It will be seen from the above that Virginia has furnished five 
Presidents (one of whom, however, was elected Vice President), 
Tennessee three (one elected as Vice President), Massachusetts two, 
Illinois two, Ohio three, New York four (two elected as Vice Presi¬ 
dent), Louisiana one, New Hampshire one and Pennsylvania one. 

After Washington’s two administrations, which were not partisan, 
though Washington himself was a Federalist, the Federalists car- 






































































104 


THE PRESIDENT. 


[II: 1 , & 


ried one presidential election, the old Republicans seven, the Demo¬ 
crats seven, the Whigs two, and the present Republican party six. 

Note.— Histoby of tub presidential elections. — The following U a 
brief history of the presidential elections: 

1. At the lirst Presidential election, George Washington was elected Presi¬ 
dent unanimously. John Adams had the next highest number of electoral 
votes and was elected Vce Presideut. The other votes were scattered. Par¬ 
ties were not yet fully defined. Both Washington and Adams were Feder¬ 
alists, that is, in favor of giving more power to the Federal government than 
the Republicans, afterwards called Democrats, wished to give. But Wash¬ 
ington governed in an unpartisan way, choosing his cabinet from both 
parties. 

2. Washington was elected unanimously. Adams was elected Vice Presi¬ 
dent, as a Federalist candidate. 

8. Adams was elected President, and Jefferson Vice President. Thla 
•lection had the peculiar feature of electing the chief of the opposing parties 
one to each of the two highest oflices. This was possible under the old 
method of electing the President, but would not be possible now. 

4. To prevent such a result again, the electors of each party concentrated 
their votes on two candidates. The result was that Jefferson and Burr, th« 
Republican (or Democratic) candidate, each received 73 votes, which was a 
majority of all the electors. It was well known that the Republican elector* 
wished Jefferson as President. The election went to the House-of Repre¬ 
sentatives, who were obliged to choose between these two. The Republican! 
in the House voted for Jefferson, and the Federal.sts for Burr, in order to 
embarrass and divide the Republicans. For thirty-five successive ballots, 
eight States voted for Jefferson, six for Burr, and two were divided. Jeffer- 
«on was finally elected President, and Burr Vice President. This election 
showed a great defect in the Constitution, which was remedied by th« 
Twelfth Amendment. 

6. Jefferson was re-elected President, and George Clinton Vice President, 
by the Republicans (or Democrats) under the new method. 

6. Madison was elected President, and George Clinton was re-elected Vico 
President, by the Republicans (or Democrats). 

7. Madison was re-elected President, and Elbridge Gerry was elected Vice 
President, by the Republicans (or Democrats). 

8. The successful termination of the war with England, in spite of the 
opposition of the Federalists, completely destroyed them as a party, and 
James Monroe was elected President, and Daniel Tompkins Vice President, 
by the Republicans (or Democrats), by a lurge majority. 

9. They were re-elected a.most unanimously. This was called “the era of 
good feeiing,” when the old party issues had passed away and new issue! 
had not yet. come up. 

10. There were four tickets in the field. Calhoun was elected Vice Presi- 
dent by the electors. No one was elected President by the electors, but 
Jackson l.ad the largest popular vote. The House of Representatives elected 
J. Q. Adams Pi esident, on the first ballot. He was the last President elected 
by the old Republican party. 


II: I, a.] 


ELECTION. 


165 


11. Jackson was elected President, and Calhoun Vice President, by th« 
Democ atic party. 

12. Jackson was re-elected President, with Van Buren as Vice President. 

13. Van Buren was elected President by the Democrats, and R. M. John¬ 
son Vice President, the election going to the Senate. 

14. Hamsun aud Tyler were elected by the Whig party. But Hauls .n 
died just one month after he was inaugurated, aud Tyler, who became the 
President, soon left the Whig party for the Democratic. 

15. P.»lk and Dallas were elected by the Democrats. 

16. Taylor and Fillmore were e.ected by the Whigs. President Taylor died 
after serving one year aud four months, and Fillmore became President. 

17. Pierce and King were elected by the Democrats. But King d.ed before 
being sworn in as Vice President. 

18. Buchanan and Breckenridge were elected by the Democrats. 

19. Lincoln and Hamlin were elected by the Republican party (not to b* 
confused with the old Republican party, who were the predecessors of the 
Democrats), and the Southern States seceded in consequence. 

2J. Lincoln was re-elected, with Andrew Johnson as Vice President. The 
States engaged in secession did not vote. But Lincoln was assassinated one 
month and ten days after his second inauguration, and Andrew .Johnson 
then became President, and like Tyler went over to the Democratic party. 

21. Grant and Colfax were elected by the Republican party. Virginia, 
Mississippi and Texas did not vote. 

22. Grant was re-elected with Wilson, by the Republican party. Arkansas, 
Georgia and Louisiana were excluded from the count for irregularities in 
the election. 

23. This Presidential election was the most exciting on record. The vote* 
of South Carolina, Florida, Louisiana and Oregon were in dispute. If any 
one of them were counted for the Democratic candidates, they would be 
elected. As the Senate was Republican and the House Democratic, they 
could not agree in regard to which set of certificates from either of these 
States should be counted. A compromise was at last effected by creating 
an extraordinary commission, to consist of five Senators (three Republican* 
and two Democrats), five Representatives (three Democrats and two Repub¬ 
licans), and five Judges of the Supreme Court (two Republicans and two 
Democrats, and the fifth to be chosen by the other four). The decisions of 
this commission were to be binding unless reversed by a vote of both 
Houses. This electoral commission, by a vote of eight to seven, admitted 
the certificates from the Republican electors of all the States in dispute, and 
thus gave the election to Hayes and Wheeler by one electoral vote. The 
count was not completed by Congress until March 3. This disputed election 
allowed the need of a change in the manner of electing the President, or at 
least :n the manner of counting the vote. 

24 . Garfield and Arthur were elected by the Republican party. Garfield 
was assassinated July 2, and died September 19, 1881, living only seven 
months of his term. Arthur became President. 

25. Cleveland and Hendricks were elected by the Democrats. 

26. Harrison and Morton were elected by the Republicans. 


166 


THE PRESIDENT. 


[U: l, &» 


CLAUSE 4. 

TIME OF THESE ELECTION'S. 

The Congress may determine the time of choosing the electors, and th® 
d:iy on which they shall give their votes; which day shall be the sam® 
throughout the United States. 

Time of presidential elections. — Congress has 
determined the time of these elections by law. The 
following table will aid the memory: 

1. Election of Electors, the Tuesday after the first 
Monday of November (in each leap year), the day on 
which Representatives are also chosen. 

2. Electors vote for President and Vice President, the 
second Monday in January. 

3. The Secretary of State sends for missing returns 
the fourth Monday in January. 

4. The votes are counted the second Wednesday in 
February, and thereafter till a President is elected, but 
not longer than till the fourth of March. The same 
dates hold for the Senate in electing a Vice President. 

6. The President is inaugurated the fourth of March. 
If that falls on Sunday, he is inaugurated on the fifth. 

CLAUSE 5. 

QUALIFICATIONS OF PRESIDENT AND VICE PRESIDENT. 

No person except a natural-born citizen, or a citizen of the United States, 
at the time of the adoption of this Constitution, shall be eligible to the 
office of President; neither shall any person be eligible to that office, 
who shall not have attained to the ago of thirty-five yeai a, and beea 
fourteen years a resident within the United States. 

I. Citizenship. — The President must be a natural- 
born citizen of the United States. The President must 
be a citizen by inheritance, not by adoption. He cannot 
be a naturalized citizen; but it is possible that a person 







n:l, 5.] 


QUALIFICATIONS. 


167 




bom out of the United States might be President. The 
child of American parents born in foreign lands, would 
be a natural-born American citizen, but not a native- 
born citizen (see page 87). 

Naturalized citizens, who were citizens at the time 
the Constitution was adopted, were made eligible to the 
office of President. But none of that class are now 
alive, and none have ever been elected President. This 
provision is therefore now practically obsolete. 

II. Age and residence. — The President must be 
at least thirty-five years old. 

He must have resided within the United States at 
least fourteen years. This residence need not have 
been immediately before his election, but may have been 
at any time previously. Persons have been elected 
President soon after a return from an embassy to some 
other country. The object of this provision was to 
prevent any person who had recently been naturalized 
from being elected President, soon after the Constitu¬ 
tion was adopted. This would also cover the case of 
natural-born citizens who had spent nearly all their 
lives abroad. A sufficient residence is required to make 
the candidate for the presidency familiar with the insti¬ 
tutions of the country he aspires to govern. 

III. Qualifications of vice president. — The 
Vice President must have the same qualifications os the 
President, because he may become President. 




163 THE PRESIDENT. • [11:1,6. 


IV. A TABLE OF QUALIFICATIONS. — The following 
table will aid the student’s memory: 



Agk. 

Citizenship. 

Residence. 

President .. 

85 

Natural-born citizen. 

Fourteen years in the 
United States. 

Vice President . 

35 

Natural-born citizen. 

Fourteen years in the 
United States. 

Senator . 

80 

Nine years a citizen. 

In the State from 
which chosen. 

Representative . 

25 

Seven years a citizen. 

In the State from 
w r hieh chosen. 


The following is a table of additional particulars: 



Term op 
Office. 

How Elected. 

Vacancies, 

How Filled. 

President .... .. 

4 years... 

By electors. 

By Vice President. 

Vice President .... 

4 years... 

By electors. 

Not Filled. 

Senator . 

6 years... 

By State Legisla¬ 
tures . 

By Governor or State 
Legislature. 

Representative ... 

2 years... 

By the people.... 

By the people of the 
District. 


CLAUSE 6. 

VACANCIES. 

In ease of the removal of the President from office, or of his death, resigna¬ 
tion, or inability to discharge the powers and duties of the said office, 
the same shall devolve on the Vice President, and the Congress may by 
law provide for the case of removal, death, resignation or inability, both 
of the President and Vice President, declaring what officer shall then act 
as President, and such officer shall act accordingly, until the disability 
be removed, or a President shall be elected. 

I. Vacancies in the presidency, how made. — The 
office of President may become vacant by death, by his 
removal on impeachment, by his resignation, or by such 
disability as insanity, or extreme and long continued 

































II: 1, 6.1 


VACANCIES. 


169 


sickness. It may also be vacant in case of the failure 
of both the presidential electors and of the House of 
Representatives to elect a President before the fourth of 
March. (Clause 3.) 

The absence of the President from Washington does 
not create a vacancy. Presidents have performed manj 
official duties at a distance from the capital. 

When the President is impeached, there is no vacancy. 
When Andrew Johnson was impeached, he held his 
office, and as the Senate acquitted him, no vacancy 
occurred. 

II. Vacancies in the presidency, how filled.— 
When a vacancy exists, and there is a Vice President, 
he fills that vacancy, unless he also is incapacitated in 
some way. If the President should be only disabled 
from performing the duties of his office by insanity or 
sickness, the Vice President would act as President for 
the time being, until the disability cease. But when 
the vacancy is a permanent one, the Vice President be¬ 
comes President. Only three vacancies in the office of 
President have occurred, in each case by the death of 
the President, and in each case the Vice President has 
succeeded to the office of President. 

III. Vacancies in the vice presidency. — The 
office of Vice President may become vacant by his death 
or resignation, by his removal on impeachment, or by 
his promotion to the office of President. When a 
vacancy occurs it is not filled. But the duties of the 
Vice President as President of the Senate are performed 
by the President pro tempore of the Senate. 

IV. Vacancies in both presidency and vice 
presidency. — The Constitution leaves it to Congress 
to provide for the case of a vacancy in the office of 




170 


THE PRESIDENT. 


[II: 1, 7. 


both President and Vice President. Congress has pro¬ 
vided that in case of such double vacancy, the Secre¬ 
tary of State, or in case there is no Secretary of State, 
one of the other Cabinet officers in a specified order, 
shall act as President, until the disability be removed 
or a new President be elected. In that case a special 
election must be held the next fall, and a President 
must be elected to fill the unexpired term, unless 
it is the last year of the term. This case has never 
arisen. 

TV hen the Vice President becomes Presiden t on the 
death, removal or resignation of the President, he 
holds the office for the whole of the unexpired term. 
But if the Secretary of State or some other Cabi¬ 
net officer should ever fill a vacancy, he would be 
only Acting President, and he would only hold the 
office of President until a special election could be held. 
But if the vacancy occur in the last year of the Presi¬ 
dent’s term, the Acting President holds the office for 
the remainder of the term , 

Y. Disputed question. 

Would the absence of the President from the United States create 
a vacancy ? The case has never occurred, and therefore no positive 
answer can be given. But most of the States have provided that 
the absence of the Governor from the State creates a vacancy in 
the office during his absence, and that the Lieutenant-Governor 
shall act as Governor during his absence from the State; and this 
would lead us to suppose that if the case should ever arise, it would 
be decided that the absence of the President from the United States 
creates a temporary vacancy. 

CLAUSE 7. 

SALARY. 

The President shall, at stated times, receive for his services a compensa¬ 
tion which shall be neither increased nor diminished during the period 
for which he shall have been elected, and he shall not receive within 
that periM any other emolument from the United States, or any of them. 


II. 1, 8.J 


OATH OF OFFICE. 


171 


The salary of the president. — The salary of the 
President was twenty-five thousand dollars until 1873, 
when it was raised to fifty thousand dollars. Besides 
this, the United States has built a house called the 
YY hite House, and keeps it furnished for the President’s 
. use. He also has special appropriations for any special 
expenses. He is expected to spend full as much as he 
receives. No executive of any country as large as this 
receives so small a salary. 

The salary of the Vice President was first five thou¬ 
sand, then eight thousand, then ten thousand, and is 
now eight thousand a year. 

The reason for neither increasing nor diminishing the 
salary of the President during his term is to make him 
more independent of Congress. This was evaded when 
President Grant’s salary was raised for his second term, 
before his first term had ended, but after he had been 
elected for a second term. 

CLAUSE 8. 

OATH OF OFFICE. 

Before he enter on the execution of his office, he shall take the following 
oath or affirmation: “I do solemnly swear (or affirm) that I will faith¬ 
fully execute the office of President of the United States, and will, to 
the best of my ability, preserve, protect and defend the Constitution of 
the United States.” 

* 

I. The oath of office. — The oath of office may 
be administered to the President by any Judge; but the 
practice is to have the Chief Justice of the Supreme 
Court perform this duty. The Chief Justice of the 
Supreme Court is the highest officer who can administer 
an oath, and ranks next to the President. 

The President’s oath of office contains two pledges: 

1. To faithfully perform the office of President of 
the United States. 


172 THE PRESIDENT. [II: 1, 8 . 

2. To the best of his ability to preserve, protect and 
defend the Constitution of the United States. 

The oath is a very simple oath as compared with 
many oaths of office. It embraces only the two most 
essential points. If the President has conscientious 
scruples against taking an oath, he can affirm instead • 
of swearing. 

II. Inauguration of the president. — The Pres¬ 
ident is inaugurated on the fourth of March, at noon. 
Besides other ceremonies, the oath of office is admin¬ 
istered, and the President delivers an inaugural address. 
The fourth of March, 1877, came on Sunday. It was a 
legal question whether the President’s term in that case 
ended on the fourth or fifth of March. The difficulty 
was avoided by President Hayes taking the oath of 
office in private on the fourth, and again in connection 
with the inaugural ceremonies on the fifth, and by 
President Grant doing no official acts after noon of the 
fourth of March. 

In the three cases when the Vice President became 
President, he took the oath of office, but there were no 
public inaugural ceremonies. 



POWERS AND DUTIES OF THE PRESIDENT, 


V 


I 


II: 2J POWERS AND DUTIES OF PRESIDENT. J73 


SECTION 2. 

POWERS AND DUTIES OF THE PRESIDENT. 

ANALYSIS OF TIIIS SECTION. 

(And of other executive powers in the Constitution.) 


L POWERS HELD 
JOINTLY WITH 

tuk Senate. 


II. POWERS HELD 
JOINTLY WITH 
CONGRESS ... 


ILL Sot.* Powers < 


IV. Prohibitions 

on ALL Exec¬ 
utive Of El- 4 
OKRA. 


1. To make treaties . II, 2 , * 

2. To appoint and remove officers.. II, 2, % 


1. Over legislation 


I* 


(a.) By the veto I, 7, 2, S 
(b.)By his mes¬ 
sages. II, 8 

2. Protection of States. II, 4 

8. To decide between rival State 

governments. IV, 4 

4. To protect the Union against re¬ 
bellion or invasion (implied).. 

1. Commander-in-Chief. II, 2,1 

2. Cabinet. II, 2, 1 

8. Pardon and reprieves. II, 2,1 

4. Temporary appointments. II, 2, 8 

5. Appointment of inferior officers, II, 2, 2 

6. Messages to Congress. II, 8 

/. Convening and adjourning Con¬ 
gress . n, 8 

9. Receiving Ambassadors. II, 8 

9. Executing the laws. II, 8 

10. Commissioning officers. H, 8 

1. Cannot suspend the writ of 

habeas corpus except in war 

time. I, 8, f 

2. Cannot draw money from the 

Treasury except as appropri¬ 
ated by law. I, 9, 4 

8. Cannot receive offices or pres¬ 
ents from foreign powers with¬ 
out the consent of Congress.. I, 8, T 
A Bound by oath to. support the 
Constitution and fulfill duties 

of office... VI, I 

5. Cannot infringe rights guaran¬ 
teed in Amendments. I-X 



























174 


THE PRESIDENT. 


[11:2,1. 


CLAUSE 1. 

SOME SOLE POWERS OF THE PRESIDENT. 

The President shall be commander-in-chief of the army and navy of th» 
United States, and of the militia of the several States, when called into 
the actual service of the United States; he may require the opinion, in 
writing, of the principal officer in each of the executive departments, upon 
any subject relating to the duties of their respective offices, and he sh*U 
have power to grant reprieves and pardons for offenses against tfet 
United States, except in cases of impeachment. 

A. Commander-in-Chief. 

I. The reason - for this power. — In order to exe¬ 
cute the laws of the United States, and to protect the 
nation from invasion or insurrection, it is necessary that 
the President should have charge of a military force. 
In almost all governments the chief executive officer is 
commander-in-chief, and in creating a chief executive 
for the United-States, it was natural and necessary that 
he should have command of the army and navy. These 
forces are subject to the general rules made by act of 
Congress (I, 8, 14), are supported by appropriations 
made by Congress (I, 8, 12), and can be reduced in num¬ 
ber, reorganized, or abolished altogether by Congress 
(I, 8, 12). So that the President cannot well use these 
forces for very harmful purposes. 

II. What military forces are under his com¬ 
mand. — The military forces under his command are the 
regular army, the regular navy, a volunteer army and 
navy, whenever these are authorized by Congress, and 
the militia of the several States when called into the 
United States service. All these forces are under the 
command of the President, subject to the powers of Con¬ 
gress named above. But the militia of any State are 
under the command of the President only when actually 



II: 2, 1.] 


THE CABINET. 


175 


In the service of the United States. Otherwise they are 
under the command of the governors of their respective 

States. 

HI. The president need not command in 
person. — The President may command the army in 
person, or he may put one or more military officers 
in command to carry on military operations under his 
general directions. The latter has always been the case. 
The President has never actually taken the field in 
person; but he has appointed officers to command, with 
certain general instructions, which they were to carry 
out as best they could with the means at their command. 

The President has the right to make additional rules 
for the army and navy, so far as they do not conflict 

with those established by law. 

«•» 

B. The Cabinet. 

I. Executive departments. — This clause by im¬ 
plication provides for executive departments. These 
have been established by law, and increased in number 
from time to time. The head of each department is 
called a secretary. These departments again are divided 
into bureaus, each with its officers and employes. 

The numbers, titles, and compensation of these offi¬ 
cers are fixed by law. The principal officers are 
appointed by the President, with the advice and con¬ 
sent of the Senate, and can be removed at pleasure. 
The clerks and employes in each department are ap¬ 
pointed by the chief of that department, and can be 
removed at pleasure. 

These departments are all subject to the President, 
and must carry out his orders. The executive power is 
vested in the President, and he is responsible for its 


exercise. 


176 


i'HE PRESIDENT. 


[II; 2, 1. 


The names of these executive departments, and the 
titles of the head of each, are given in the following 
table: 

DEPARTMENTS. SECRETARIES. 

Department of State. Secretary of State. 

Treasury Department. Secretary of the Treasury. 

War Department. . Secretary of War. 

Department of the Navy. Secretary of the Navy. 

Department of the Interior. Secretary of the Interior. 

Post Office Department.Post Master General. 

Department of Justice.Attorney General. 

Department of Agriculture.Secretary of Agriculture. 

II. The cabinet. — President Washington began 
the practice of consulting the heads of departments 
separately or together, orally or in writing, about all 
important matters, thus making an informal Cabinet. 
President Jefferson began the practice of holding regu¬ 
lar Cabinet meetings, a practice which has been kept 
up by all Presidents since. This practice of holding 
Cabinet meetings, and of consulting with them on all 
important matters, is not binding on the President. He 
can do it or not, as he chooses. But it is so great a 
help to him in the management of his office, that it is 
not likely that any President will ever dispense with it. 

A Cabinet meeting is not so much in the nature of a 
legislature as of a council of war. The President takes 
the opinions of his Cabinet, but he is not bound by 
them. Still, as they are liis political friends, and gen¬ 
erally his personal friends, a wise President is usually 
guided by them to a great extent. 

The Cabinet meetings are usually secret. The con-' 
sulfations are not published. They are therefore much 
freer than they could be if they were public or were to 










II: 2, 1,J 


THE CABINET. 


177 


be published. The things which the Cabinet advise the 
President to do, are of course known when he does 
them, and often are told to the public before they are 
put in action, though sometimes they are kept secret 
for a time. 

III. Reports of heads of departments. — It 
has become the custom for the heads of departments 
and for the heads of important bureaus to prepare full 
reports to the President, which he transmits to Con¬ 
gress with his annual message. Most Americans 
must have seen these reports, for they are printed every 
year by thousands and scattered over the country. 

The President sometimes calls for written reports or 
opinions at other times. The Attorney-General, as the 
law officer of the Government, is frequently called upon 
for an opinion in writing as to the lawfulness of certain 
courses of action. The reports or opinions in writing 
which the President can require, must be upon a sub¬ 
ject relating to the duties of the Secretary’s office. 
Thus the President would call on the Secretary of 
State for an opinion upon our relations with any foreign 
power, or upon the Secretary of the Treasury for an 
opinion on a financial question, and so on. 

IV. Organization of the departments. — The 
executive departments are each divided into bureaus, 
with their chiefs and a force of clerks, copyists and 
messengers, etc. 

THE DEPARTMENT OF STATE. 

The chief of this department is called the Secretary of State. 
His duties are: 

1. Domestic .— He keeps the originals of the Constitution and of 
all laws and public documents. He keeps the great seal of the 
United States, and seals all commissions to office, all proclamations 
of the President, and all copies of papers and records in his office. 

L 


178 


THE PRESIDENT. 


[Hi 2, 1* 


2. Foreign .— He keeps the originals of all treaties, and all cor¬ 
respondence with foreign powers, conducts all such correspondence, 
issues warrants for the extradition of criminals to foreign powers, 
and issues passports to citizens of the United States who wish to 
travel abroad. 

In this department there is an Assistant Secretary of State, ap¬ 
pointed by the President with the consent of the Senate, and many 
clerks. There are three bureaus in this department, each with a 
chief and a force of clerks. They are: 

1. The Diplomatic Bureau. 

2. The Consular Bureau. 

3. The Domestic Bureau. 

Connected with the Department of State are the Diplomatic Ser¬ 
vice and the Consular Service. 

THE DIPLOMATIC BEE VICE. 

To every country with which we have diplomatic relations wa 
send a foreign minister. Those sent to the most important coun¬ 
tries are called Ministers Plenipotentiary; those sent to less impor¬ 
tant countries are called Ministers Resident. The duties of both 
classes are the same. Most Ministers have Secretaries of Legation. 
In the absence of the Minister, the Secretary of Legation transacts 
all business for him. 

THE CONSULAR SERVICE. 

Consuls have charge of our commercial relations. They guard 
the interests of our commerce, and the rights of seamen. In all 
countries not Christian, consuls have a great increase of power and 
duties. An American citizen in England is subject to English law; 
but an American citizen in Turkey or China is subject to American 
law, not Turkish or Chinese law. To administer American law in 
non-Christian lands, consuls have some judicial powers given them. 

THE TREASURY DEPARTMENT. 

The chief of this department is called the Secretary of the Treas¬ 
ury. He has charge of everything that relates to the revenues and 
expenditures of the United States. 

This department has more work, and employs more clerks than 
«ny other. There are two Assistant Secretaries of the Treasury, 
and the following bureaus, each with a force of clerks: 


II: 2, 1.] 


THE CABINET. 


1TB 


BUREAUS. 

Office of First Comptroller. 

Office of Second Comptroller. 

Office of First Auditor. 

Office of Second Auditor. 

Office of Third Auditor. 

Office of Fourth Auditor. 

Office of Filth Auditor. 

Office of Sixth Auditor. 

Office of Treasurer. 

Office of Commissioner of Customs, 
Bureau of Internal Revenue. 

Bureau of Statistics. 

The Mint. 

The Coast Survey. 

Office of the Supervising Architect, 
Light House Board. 


CHIEFS. 

First Comptroller. 

Second Comptroller* 

First Auditor. 

Second Auditor. 

Third Auditor. 

Fourth Auditor. 

Fifth Auditor. 

Sixth Auditor. 

Treasurer of the United Staton. 
Commissioner of Customs. 
Commissioner of Internal Rev¬ 
enue. 

Director of the Bureau of Sta¬ 
tistics. 

Director of the Mint. 
Superintendent of the Coast 
Survey. 

Supervising Architect. 
Secretary of the Treasury (es 
officio). 


THE WAR DEPARTMENT. 


This department has charge of all that relates to the Army. Tha 
officers in charge of Bureaus are army officers. The Secretary some¬ 
times has been an army officer. The divisions of the department 
are as follows: 


BUHEAUS. 

Office of Adjutant General. 

Office of Quartermaster General 
Office of Commissary General... 
Office of Paymaster General.... 

Office of Surgeon General. 

Office of Chief of Engineers..., 

The Ordnance Office. 

The Signal Office.■ 

The Bureau of Military Justice . 


CHIEFS. 

Adjutant General. 
Quartermaster General* 
Commissary General. 
Paymaster General. 
Surgeon General. 

Chief of Engineers. 

Chief Ordnance Officer. 
Chief Signal Officer. 
Judge Advocate General* 


The Military Academy at West Point, N. Y., trains officers for 
thA army, and is in charge of the War Department. One cadet k 

























180 


THE PRES [DENT. 


Ills 2 , t. 


•ent from each Congressional district, nominated by the Representa¬ 
tive from that district, one from each Territory, nominated by the 
Delegate, and ten at large, appointed by the President. Each 
cadet pledges himself to serve at least five years in the army after 
he graduates. 


DEPARTMENT OF THE NAVY. 

This department has charge of all that relates to the Navy. The 
chief officers in this department are navy officers, detailed for that 
purpose. The Secretary of the Navy has sometimes been a navy 
officer. The work is divided thus: 

BUREAUS. 

The Bureau of Yards and Docks. 

of Equipment and Recruiting, 
of Navigation, 
of Ordnance, 
of Medicine and Surgery, 
of Provisions and Clothing, 
of Steam Engineering, 
of Construction and Repairs. 

The Naval Academy at Annapolis, Md., trains officers for the 
Navy. The cadets are appointed in the same way as for West 
Point. 

DEPARTMENT OF THE INTERIOR. 

This is the most miscellaneous department. Its duties can be 
best learned from the names of the bureaus into which it is divided. 
They are as follows: 

BUREAUS. CHIEFS. 

The Patent Office. Commissioner of Patents. 

The Pension Office.... Commissioner of Pensions. 

The Land Office. Commissioner of the General Land Office. 

The Indian Bureau... Commissioner of Indian Affairs. 

The Census Bureau ... Superintendent of the Census. 

The Bureau of Education. Commissioner of Education. 



fls 2, 1.] 


THE PARDONING POWER. 


181 


POST OFFICE DEPARTMENT. 

This department has charge of all that relates to the post offices. 
It is divided as follows: 


BUREAUS. CHIEFS. 

Appointment Office. First Assistant Postmaster General. 

Contract Office. Second Assistant Postmaster General. 

Finance Office. Third Assistant Postmaster General. 

Money Order Office.. Superintendent of the Money Order System. 
Foreign Mail Office.. Superintendent of the Foreign Mails. 


DEPARTMENT OF JUSTICE. 

This department has charge of the prosecution and defense of 
suits for or against the United States. All the District Attorneys 
and Marshals of the United States Courts act under the orders of 
this department. The department has several chief officers who 
correspond nearly to the assistant secretaries and chief of bureaus 
in the other departments. They are as follows: 

Solicitor General. 

Assistant Attorney General. 

Assistant Attorney General at the Court of Claims. 

Assistant Attorney General in the Department of the Interior. 

Assistant Attorney General in the Post Office Department 

Solicitor of Internal Revenue. 

Naval Solicitor. 

Examiner of Claims. 

Solicitor of the Treasury. 

Assistant Solicitor of the Treasury 

DEPARTMENT OF AGRICULTURE. 

The duties of this department are indicated by its title. 

C. The Pardoning Poicer. 

I. Reasons for this power. — The experience of 
the world has shown that in administering justice, mis¬ 
takes are sometimes made. Innocent persons are some¬ 
times convicted of crimes by mistake, or by false 
witnesses, and guilty persons are sometimes sentenced 
to a punishment more severe than they deserve. Some¬ 
times, also, a crime cannot be proved against a number 



182 


THE PRESIDENT. 


[II: 2 f K 


ef guilty persons, except by the testimony of one of 
their number, which testimony will not be given unless 
the witness is assured that he will not be punished for 
his share in the crime. For these reasons, all govern¬ 
ments have allowed a pardoning power, and have almost 
always placed this power in the hands of the execu¬ 
tive. 

The pardoning power is liable to great abuses. The 
executive may refuse to pardon those who deserve to be 
pardoned, and may encourage crime b}" pardoning great 
criminals. Our Presidents have been inclined to be too 
easy, rather than too severe, in the exercise of this power. 
It has sometimes been proposed to give this power to 
the courts; but no serious attempt has yet been made 
in that,direction. 

II. Extent of the pardoning power. — 1. The 
President may pardon before trial and conviction as 
well as after. 

2. He may grant a conditional pardon. 

3. He may commute a sentence to one less severe. 

4. Ho may remit fines, penalties and forfeitures im¬ 
posed under the revenue laws. 

5. He may stop a criminal proceeding carried on in 
the name of the United States, at any stage of the pro¬ 
cess, and order the Attorney General or District Attor¬ 
ney to enter a nolle prosequi} 

6. He can reprieve a condemned person; that is, sus¬ 
pend his punishment for a time. This power is rarely 
used except where a person is condemned to death. 

7. He can issue a pardon to take effect at some future 
time. 

1 Nolle prosequi is a Latin phrase, meaning not to wish to prosecute. The 
effect oi entering a nolle prosequi is to stop the case and release the accused. 
But the accused may be prosecuted a<rain lor the same offense at some luture 
time, which would not be the case il he had been acquitted by ihe verdict of 
a Jury. 



11:2, 2.] THE TREATY-MAKING POWER. 188 

8. His power extends to military as well as civil 
offenses. 

III. Limitations on the pardoning power. — 1. 
A pardon, reprieve or commutation must be accepted 
by the criminal, or it is void. 

2. In cases of impeachment, the President has no 
official power. An impeachment is a political, and not 
a criminal, trial, and is directed against an executive or 
judicial officer for malfeasance in office. Besides, if the 
President were impeached, it would be obviously unfair 
to allow him to pardon himself. 1 Or if an officer ap¬ 
pointed by the President was impeached for carrying 
out some ambitious design of the President, the Presi¬ 
dent would be tempted to pardon him. 

The President’s power to pardon only extends to 
offenses against the United States. When offenses have 
been committed against a State, he has no power to 
pardon. 


CLAUSE 2. 

POWERS HELD JOINTLY WITH THE SENATE. 

He shall have power, by and with the advice and consent of the Senate, to 
make treaties, provided two-thirds of the Senators present concur; and 
he shall nominate, and by and with the advice and consent of the Senate, 
shall appoint Ambassadors, other public Ministers and Consuls, Judges 
of the Supreme Court, and all other officers of the United States, whose 
appointments are not herein otherwise provided for, and which shall be 
established by law; but the Congress may by law vest the appointment 
for such inferior officers as they may think proper, in the President 
alone, in the courts of law or in the heads of departments. 

A. The Treaty-making Forcer. 

I. Treaty making. — In monarchies the sovereign 
or liis council have the sole power of making treaties 
and managing all the foreign relations of the govern- 

1 The case would be thar supposed by the old negro in Washington, when 
President Johnson was impeached by the House of Representatives. Th« 

negro said, “No use to impeach de President. HeTl veto it sure.” 




184 


THE PRESIDENT. 


[II: 2, 2. 


ment. It is necessary often to conduct negotiations 
with other governments with secrecy and despatch, 
which could not be expected if the national legislature 
was to make treaties and manage foreign relations. 
But as this is a republic, the representatives of the peo¬ 
ple ought to have some voice in matters so important 
to the national welfare. Both objects are gained in our 
plan of making treaties. The negotiations preliminary 
to a treaty are conducted by the executive, as well as 
the ordinary correspondence with other governments. 
But no treaty is valid until the Senate, by a two-thirds 
majority, has assented to it. The Senate has several 
times exercised its right of rejecting a treaty proposed 
by the President. 

II. A DISPUTED QUESTION. 

It is still an open question whether the President and Senate can 
make a treaty involving the payment of money without the consent 
of the House of Representatives. The President and Senate cannot 
compel the House to vote an appropriation with which to pay any 
turn promised in the treaty, but they can bind the honor of thn 
nation to fulfill a contract lawfully made with a foreign power. In 
such cases the House has never refused to vote the appropriation, 
but has done it under protest. The House of Representative* 
claims that it ought not to be expected to vote money for an object 
about which it has not been consulted. The question is still unde¬ 
cided. 

III. Kinds op treaties. — Treaties are of four 
kinds: 

1. Treaties of peace, which close a war and formally declare its 
results. 

2. Treaties of alliance, in which two or more nations agree to 
help each other for some common object. A treaty ot alliance may 
be merely defensive, in which each agrees to help the other when 
attacked; or it may be offensive and defensive, in which the allies 
agree to carry on war against a common enemy. 

3. Commercial treaties, in which two or more nations agree as to 
certain regulations of commerce between them. 


XI : 2, 2.] 


THE APPOINTING POWER. 


185 


4. Treaties to define and establish rules of international law. In¬ 
ternational law is to-day that body of customs and treaties which 
govern civilized nations in their relations with one another. These are 
constantly being 1 changed and improved. On many disputed ques¬ 
tions of international law, treaties have been made between a part 
of the civilized nations of the world, which are therefore law as 
between them, but not for the other nations. 

B. The Appointing Power. 

I. Officers of the United States are appointed, 
not elected. — The rule in the United States service is, 
that officers shall be appointed, not elected. Most State 
and county officers are now elected by the people. But 
at the time when the Constitution was adopted these 
officers were generally appointed. That is still the case 
in England. This Constitution follows the practice 
then prevalent. It is not likely that it will ever be 
changed, so as to elect United States officers by the 
people. 

It should be remembered that Senators and Repre¬ 
sentatives are not officers of the United States, but 
representatives — the Senators of the States, and the Rep¬ 
resentatives of the people. The only United States 
officers who are elected are President and Vice President. 
All other officers of the United States are appointed in 
one way or another. 

II. Appointments in concurrence with the 
senate. — All the principal appointed officers of the 
United States are appointed by the President with the 
advice and consent of the Senate. For these officers 
the appointment of the President is either a mere nom¬ 
ination, or it is a temporary appointment. If the Senate 
is in session, an appointment by the President is only 
a nomination to the Senate. If the Senate refuses to 
confirm the nomination, the officer cannot be commia- 


186 


THE PRESIDENT. 


[II: 2, 2. 


sioned, and the President must appoint or nominate 
some one else, until he selects some one whom the 
Senate is willing to confirm. But in the recess of the 
Senate, the President can make a temporary appoint¬ 
ment, which will hold good till the Senate meets (see 
next clause). 

III. The action of the senate. — These appoint¬ 
ments are considered by the Senate in secret session. 
They are usually referred to a committee, who inquire 
into them and report on some following day. Appoint¬ 
ments by the President are often rejected by the Senate. 
There are only two cases in which the Senate is in the 
habit of confirming appointments at once without re¬ 
ferring to a committee. 

1. The President’s Cabinet are almost invariably con¬ 
firmed without hesitation, as a mark of courtesy to the 
President. The Cabinet are his advisers, and he ought 
not to be hampered in carrying out the duties of his 
office, by being deprived of the men he wishes to have 
for his advisers, or by having men he does not wish 
forced upon him. 

2. When a Senator, or a person who has been a Sen¬ 
ator, is named by the President for an office, the Senate 
is in the habit of confirming the nomination at once, 
as a mark of courtesy to a colleague. 

IV. Executive sessions of the senate. — When 
the Senate considers a treaty or an appointment, it 
goes into an “executive session.” This is so called be¬ 
cause the business then transacted is not properly legis¬ 
lative business but executive business. These sessions 
are always secret. No one is allowed to be present but 
the members and officers of the Senate, and these are all 
pledged to s^recy in regard to the debates. The action 


II: 2, 2.] 


THE APPOINTING POWER. 


187 


taken is of course necessarily made public at once, ex¬ 
cept sometimes in case of treaties. But tlie debates and 
votes are kept secret. This is to give greater freedom 
to Senators in speaking and voting than they would 
have if their action was made public. Appointments 
are confirmed by a simple majority, but treaties require 
a two-tliirds majority. 

Y. Appointments without the concurrence oe 
the senate. — The Constitution provides that Congress 
may by law vest the appointment of inferior officers in 
the President alone, in the courts, or in the heads of 
departments. 

This only applies to those inferior officers whose ap¬ 
pointment is expressly given by law to one of those 
three powers. In all other cases, no matter how insig¬ 
nificant the office, the officer must be appointed by the 
President and Senate concurrently. By far the largest 
class of these officers are those postmasters whose sal¬ 
aries are less than one thousand dollars. These are 
over 60,000 in number, and are appointed by the Post¬ 
master General. 

VI. Removals. — The power to appoint, when un¬ 
limited, implies the power to remove. The question 
was settled in Washington’s administration, that the 
President can remove all officers whom he can appoint, 
except judges, who hold for life. 

This power was limited in 1S66 and 1867 by two 
laws. The first provided that no officer in the military 
or naval service of the United States can be dismissed 
the service in time of peace, except on the sentence of a 

court martial. _ _ < 

The other law is the tenure-of-office act. Originally, 

this act so limited the President’s power of removal 


188 


THE PRESIDENT. 


[11:2, 2. 


that it was exactly equal to his power to appoint. That 
is, the President could not remove an officer except 
with the consent of the Senate; he could only suspend 
an officer until the Senate took action upon the case. 

But this has since been amended, so that the Presi¬ 
dent can now suspend an officer until the close of the 
next session of the Senate, and make a temporary ap¬ 
pointment in his place (clause 3). If the Senate before 
the close of its session does not confirm the person or 
persons whom the President nominates for the vacancy, 
the old officer comes back again. But it should be 
noted that the President, if he is obstinate, can suspend 
him again and make another temporary appointment, 
and so on, till the Senate yields (see page 190). 

VII. The appointment and removal c>f inferior 
oppicers. — The Constitution allows Congress by law 
to vest the appointment of inferior officers in the Pres¬ 
ident alone, in the courts of law, or in the heads of 
departments. The object of this is to avoid taking up 
the time of the Senate or of the President with the 
appointment of a multitude of petty officers; and also 
to allow certain officers to be appointed by those most 
interested in them. 

Congress has exercised this right. The chief classes 
of inferior officers who are appointed thus^ are as 
follows: 

1. All postmasters whose salaries are less than a 
thousand dollars a year are appointed by the Postmaster 
General. 

2. Most of the clerks, messengers, etc., in the Depart¬ 
ments at Washington, are appointed by the Secretary 
in whose Department they are. The chiefs of the Bu¬ 
reaus and a few of the most important officers in each 




II: 2, 3.] POWER TO APPOINT TEMPORARILY 189 


Department, are appointed by the President with the 
consent of the Senate. 

3. The clerks in the various Custom Houses are ap¬ 
pointed by the Chief Collector in each Custom House.*- 

4. The clerks of the United States Courts are appointed 
by the Courts. In the cases of those inferior officers 
for whose appointment the concurrence of the Senate 
is not needed, it is also not needed for their removal. 
The same power which appoints can also remove. 

VIII. The tenure of office. — This is now in 
nearly all cases, except Judges and Clerks of Courts, 
for four years unless sooner removed. Officers are fre¬ 
quently removed for political reasons, as well as for 
unfitness. Officers are also frequently reappointed at 
the end of their first term 

CLAUSE 8 

THE POWER TO APPOINT TEMPORARILY. 

The President shall have power to All up all vacancies that may happen 

during the recesB of the Senate, by granting commissions which shall 

expire at the end of thoir next session. 

I. Temporary appointments. — The Constitution 
provides that appointments to office (except some infe¬ 
rior ones) shall be by the joint action of the President 
and Senate. But the Senate is not always in session, 
and vacancies may occur when the Senate is not in 
session. The Constitution provides that in such cases 
the President alone may make an appointment to fill 
the vacancy. The officer so appointed holds only till 
the close of the next session of the Senate. 

When a vacancy occurs during the recess of the 
Senate, the President may (1) leave the office vacant till 
the Senate meets, or (2) make a temporary appointment. 


190 


THE PRESIDENT. 


[II: 2, tt. 


In many cases he is obliged to do the latter, because 
the office must have some one in it, so that public busi¬ 
ness may go on. In other cases, it is better to wait till 
the Senate meets, and thus be sure that the President’s 
choice meets with the approval of the Senate. This is 
the case with Judges of the Supreme Court, and with 
officers of the army and navy in time of peace. 

II. Vacancies, how caused. — Vacancies may be 
caused by death, by resignation, or by removal. The 
President can make a vacancy in an office by removing 
the officer holding it, and then fill the vacancy with 
some one he prefers. This, of course, can only be done 
in those offices over which he has the power of removal. 

III. An evasion. — If a vacancy occurs or is made 
during the recess of the Senate, the President can ap¬ 
point some one to fill it, and if the Senate refuses to 
confirm him, wait till the Senate adjourns, and then 
reappoint him, and so on. He can do this because the 
term for which he commissions the officer lasts till the 
end of the next session of the Senate. When they ad¬ 
journ, that creates a vacancy in the office, which he has 
power to fill. This appointment lasts till the close of 
the next session, and so on. Thus, if a President is 
disposed to be obstinate, he can in almost any case de¬ 
feat the will of the Senate. But as the President needs 
the co-operation of the Senate in many things, he will 
not usually try to provoke a contest over appointments. 

IV. Appointment to life offices. — If a vacancy 
occurs in a life office, such as a judge or officer of the 
army or navy, any appointment made by the President 
in the recess of the Senate could only be till the close 

• of the next session of the Senate, and not for life. To 
make it for life, the Senate must confirm the appoint¬ 
ment. 



CIVIL SERVICE REFORM. 


191 


U: 2, 3.] 

k 

Y. ClYIL SERVICE REFORM. 

Originally the appointments to all the offices under the United 
States were expected to be for such a time as the officer was faith¬ 
ful and efficient, and it was not supposed that officers would be 
removed except for unfaithfulness and inefficiency. An exception 
was always made in the case of the Cabinet officers and Foreign 
Ministers. These officers were expected to carry out the President’s 
political policy, and were therefore frequently changed. But all 
the inferior officers were expected to perform the duties of their 
office according to the orders given by their superior officers, without 
regard to their politics. During the first forty years of the republic, 
very few removals were made, and those only for good cause. 

But President Jackson, in 1829, introduced a new practice, which 
has ever since been followed. He and his Cabinet officers removed 
from office all government officers who had been active in opposing 
his election, and filled their places with active partisans of his own. 
The practice has since been for each President and his Cabinet to 
make a large number of changes in the offices, and when a new 
party comes into power, to make pretty nearly a clean sweep. The 
new appointments are made as rewards of political sendees to tha 
party in power. The case has never occurred that all the officers 
were removed who could be. In the various bureaus, some clerk* 
have such knowledge of the methods of business that their services 
could not be spared. But the general fact is that a new President 
makes many changes, and a change of the party in power makes 
nearly a complete change of the civil service. 

The effect of these change's has not been so disastrous upon publio 
business as it would seem to be. The new officers are usually se¬ 
lected not merely with reference to political services, but with refer¬ 
ence to special abilities for their work. And such is the general 
business adaptability of Americans that a politician appointed to a 
post ollice, or a revenue office, or an office in one of the depart¬ 
ments, learns its duties in a month or two, and performs them as 
well as if he had been doing them for years. Nor is there very 
much corruption in office, and probably no more than there would 
be under any system of appointing or electing government officers. 

The chief evil of our civil serv.ee is that it is a huge machine to 
control the politics of the country. While politics have not very 
largely corrupted the civil service, the civil sendee has greatly cor¬ 
rupted our politics. In order to purify our politics, it is necessary 
to take the civil service out of politics, just as the military and 
naval service is now out of politics. 


193 


THE PRESIDENT. 


[H:8. 


SECTION 3. 

OTHER SOLE POWERS OF THE PRESIDENT. 

fle shall from time to time give to the Congress information of the state of 
the Union, and recommend to their consideration such measures as h* 
shall judge necessary and expedient; he may on extraordinary occasions, 
convene both Houses or either of them, and in case of disagreement be¬ 
tween them, with respect to the time of adjournment, he may adjourn 
them to such time as he shall think proper; he shall receive ambassa¬ 
dors and other public ministers; he 6hall take care that the laws bo 
faithfully executed, and shall commission all of the officers of the United 
States. 

I. The president’s message. — The President sends 
to Congress at the beginning of each regular session a . 
message which contains: 

1. A general account of the doings of the executive 
during the year. 

2. A summary of the reports of departments, which 
reports are published separately. 

3. Suggestions and recommendations as to legislation 
needed. 

The President also sends special messages whenever 
there is occasion for them, to give information or to 
make recommendations. 

Washington and Adams followed the custom of the 
sovereigns of England, by going in person to deliver 
their messages, and by receiving a reply from each 
House. But Jefferson sent a written message, and did 
not expect a reply. This usage has been followed since. 

Congress does not always follow the recommenda¬ 
tions of the President. 

II. The power to convene congress. — Congress 
meets regularly on the first Monday in December, 
and remains in session in the odd years until the fourth 
of March, and generally much longer in the even years. 


II: 3.] 


POWER TO CONVENE CONGRESS. 


193 


This is enough for all ordinary legislation. But occa¬ 
sionally there will come an extraordinary occasion when 
legislation is needed on some subject which cannot be 
put off till the regular session. Presidents have used 
their power to convene Congress in special session only 
ten times in ail. 1 These occasions were all extraordi¬ 
nary. 

The President has frequently convened the Senate 
at the close of a regular session of Congress to consider 
appointments. 

The President can only convene Congress at the 
capitol, if the capitol can be used. If the capitol 
fthould be captured by foreign enemies, or by rebels, or 
a great pestilence or fire should make it uninhabitable, 
it would probably be in the power of the President to 
convene Congress at some other place, either at a regu¬ 
lar or special session. But the case has never arisen 
since the Constitution was adopted. 

When Congress is convened in special session, it is 


1 The following table will show the special sessions of Congress, and the 
r**a6ons for them: 


3 

When. 

By Whom. 

Why. 

May 15, 1797. 

Adams. 

Difficulties with France. 

Oct. 17, 1803. 

Jefferson.. 

Purchase of Louisiana. 

May 22, 1809. 

Madison. 

Difficulties with England. 

May 24, 1813. 

Madison. 

Difficulties with England. 

Sept. 4, 1837. 

Van Buren. 

Financial distress of the country. 

May 31, 1841. 

Harrison. 

Financial distress of the country. 

Aug. 21, 1856. 

Pierce. 

Kansas troubles. 

July 4, 1861. 

Lincoln. 

Civil war. 

Oct, 15, 1877. 

Hayes. 

No appropriations for the army. 

* 

Mar. 15, 1879. 

Hayes. 

No appropriation bills passed. 

-■■■ '-—=3 - r TJES 


























194 


THE PRESIDENT. 


[II: 3. 


not confined to any special time. It can sit as long or 
as short a time as it pleases. Nor is it confined to any 
class of subjects. The President calls it together for 
special reasons, which he names in his proclamation or 
in his special message; but Congress is at liberty to 
consider any other subject, and generally takes that 
liberty. A special session only differs from a regular 
session in beginning at a different time. 

After a Congress has once met and organized, it can 
adjourn to any future time, and thus make special ses¬ 
sions, without any call of the President. But before a 
Congress has met, or if it has adjourned without deter¬ 
mining on a special session, it can only meet before the 
time of the next regular session by a call of the 
President. 

III. The power to adjourn congress. — When 
the Senate and House of Representatives cannot agree 
as to the time of adjournment, the President may 
adjourn them to such time as he thinks proper. This 
cannot be construed to mean that he can adjourn them 
any longer than till the time for the next regular ses¬ 
sion, as that is fixed by law. 

The case has never arisen in which both Houses have 
disagreed as to the time of adjournment, and the Presi¬ 
dent has never been called on to exercise this power. 
But the case might well arise when the value of this 
provision would be seen. 

In England the sovereign can prorogue, that is ad¬ 
journ, Parliament at. any time, and can even dissolve 
Parliament and order a new election. A Parliament in 
England never adjourns itself, but is always prorogued 
by the sovereign when it has finished its work. And a 
Parliament rarely sits the full seven years for which it 
is elected without a dissolution. 



II: 8.] 


RECEPTION OF AMBASSADORS. 


195 


IV. Reception of ambassadors. — To receive an 
ambassador or other public minister is to formally rec¬ 
ognize him as an ambassador. A foreign minister must 
present his credentials to the President at a formal 
audience, and be received, before he can perform any 
public act. The same thing is done by our ambassadors 
abroad. 

The power to receive implies the power to refuse to 
receive, and the power to dismiss. The executive of 
any country may refuse to receive or may dismiss the 
ambassador of another country on one of the following 
grounds: 

1. If the nation he represents has not yet been rec¬ 
ognized as a nation by the government to which he ift 
accredited. 

2. Often when the country he represents and the 
country to which he is accredited have a very serious 
quarrel, and always when they are at war. 

3. When the ambassador is personally objectionable 
to the government to which he is accredited. In that 
case some other person will be sent in his place. 

The act of receiving ambassadors is to nations what 
it is to individuals to be on calling terms, or on speak¬ 
ing terms, except that it is done by agents instead of 
in person. _ 

This power of the President is one of great responsi¬ 
bility at times. When in consequence of civil war 
there are two rival governments in a foreign nation, 
the question which government we shall recognize is 
decided by the President and this recognition might 
even sometimes involve us in war with the side which 
we did not recognize. Or if the President should dis¬ 
miss the ambassador of some other country on account 
of a difference with that government, it might easily 







196 


THE PRESIDENT. 


[11: & 


lead us into a war. We are favored by Providence by 
having tlie Atlantic between us and any formidable foe T 
so that the mistakes of our President are not so dan¬ 
gerous to us as they would be in another situation. 
We have also been fortunate in having Presidents who, 
with the advice of their Cabinets, have managed our for¬ 
eign relations discreetly, whatever may be said of their 
home policy. 

V. Execution of the laws. — This is the most im¬ 
portant duty of the President, and of the executive 
officers under his direction. The President does not 
make or repeal the laws (except so fax as his veto powei 
extends). If he thinks a law a bad one, it is neverthe¬ 
less his duty to enforce it until it is repealed. He can 
recommend its repeal by Congress, but he must enforce 
it until it is repealed. 

If the President or any officer should enforce that as 
law which is not law, or should go beyond his powers or 
duties as given in the Constitution and Statutes, any 
one aggrieved by such action has a remedy in the 
courts, by some of the various writs used by the courts, 
and by a suit for damages, if any damages have been 
sustained. The President. and all his subordinate offi¬ 
cers are thus subject to the laws. They do not make 
the laws; Congress does that. They do not interpret 
the laws; the courts do that. But it is their duty to 
enforce the laws, and to enforce them in lawful ways. 

If any one violates the law, he can be arrested and 
tried, and punished. If any one refuse to obey the law, 
the executive officers can compel him to obey it, either 
by citing him before the courts for trial and punish¬ 
ment, or, if necessary, by armed force. 

The President cannot himself do all the work of en¬ 
forcing the laws, but he can take care that the laws are 


11: 3.J 


COMMISSIONING OFFICERS. 


197 


faithfully executed. He frequently instructs the Dis¬ 
trict Attorneys and Marshals as to suits or criminal 
cases in the courts, by which violations of law are pun¬ 
ished. All executive officers of the United States act 
under his direction, and must obey his orders, or risk 
being removed from office. Thus he has ample power 
to see tlmfc the laws are enforced. 

VI. Commissioning officers. — When an officer is 
appointed, he receives a commission, signed by the 
President and certified by the great seal, which is 
affixed by the Secretary of State. An officer’s term of 
office begins when the President signs his commission* 
whether the officer receives it or not. The following 
things are necessary to holding any office to which the 
President can appoint with the advice and consent of 
the Senate: 

1. The President must nominate. 

2. The Senate must confirm (except during their 
recess). 

3. The President must commission. 

4. The person appointed must accept. 

Other officers only require to be appointed by the 
proper authority and to accept the appointment. 

Under this clause the President might be required by 
law to commission officers, appointed by the courts or 
by heads of departments, but this has not been required 
as yet by law. 


188 


IMPEACHMENTS. 


[ 11 : 4 , 


SECTION 4 

IMPEACHMENTS. 


ANALYSIS OP THE SUBJECT OF IMPEACHMENT. 


J l. The President of the United States, 11,4 
2. The Vice President of the United 


impeached.. | States. 11,4 

8. All civil officers. II, 4 



II. F O B f HAT 
CAUSE . 


(a.) Treason . II, 4 

(b.) Bribery........ II, 4 

(c.) Other high crimes or misdemean¬ 
ors .. II, 4 


III. Bt whom impeached — The House of Representatives.. I, 2, 5 
IY. By whom tried — The Senate. I, 8, t 


Y. Forms o » < 

Till Ali. • « . • • • • 


V 


(a.) The Senate shall be under oath.. I, 8, ® 
(b.) When the President is tried the 

Chief Justice shall preside.... I, 8,4 
(c.) Two-thirds shall be required to 

convict... . I, 8, 6 


j (a.) Removal from office. 1,8,7 

VI. Punishments. < (b.) Disqualification for holding office 

afterward. I, 8, 7 

^ VII The party convicted may also be tried by the courts. — I, 8, T 


The President, Vice President, and all civil officers of the United States, 
shall be removed from office on impeachment for, and conviction of 
treason, bribery, or other high crimes and misdemeanors. 

I. Who can be impeached. — Only civil officers of 
ihe United States can be impeached. Military and 
naval officers are not civil officers, and cannot be im¬ 
peached; but they can be tried by court martial. 

Senators and Representatives are not officers, but 
representatives of tbe States or the people; they can be 
expelled by the House to which they belong; but they 
cannot be removed by impeachment. 

Judicial and executive officers (except military or 
naval) are civil officers within the meaning of this sec- 

















11:4.] 


IMPEACHMENTS. 


199 


fcion, and can be removed from office by impeachment 
and conviction. Any officer who can be removed by 
the President or by other authority would usually be 
removed in this way, if he deserved it, rather than to 
wait for the slow process of an impeachment trial. 

II. For what oak officers be impeached? — Not 
for their private conduct, but only for, their official acts. 
For instance, an officer could not be impeached for 
drunkenness, unless it rendered him unfit to perform 
the duties of his office. The Constitution specifies 
three causes for impeachment: 

1. Treason. As this is defined elsewhere in the Con¬ 
stitution, it consists in u levying war against the United 
States, or in adhering to their enemies, giving them aid 
and comfort.” 

2. Bribery, that is, receiving money or its equiva¬ 
lent for using their office to the advantage of some one. 
For instance, if a judge should take a present for decid¬ 
ing for one party to a suit rather than the other, that 
would be bribery. Or if a revenue officer should take 
money from an importer to let his goods pass the cus¬ 
tom house with less than the legal duty, that would be 
bribery. 

3. Other high crimes and misdemeanors. What these 
are is not defined, nor was it meant to be. Cases will 
sometimes arise which cannot be included under any 
law previously enacted, and the Senate must exercise its 
own discretion as to what constitutes these high crimes 
and misdemeanors. It will be guided, however, largely 
by the precedents already made in impeachment trials 
in this country and England. 

III. Disputed questions — 1. Can an officer avoid 
impeachment by resignation? 

No. In 1876, the House of Representative! impeached W. W. 


200 


IMPEACHMENT. 


[II: 4. 


Belknap, Secretary of War, for corruption, and he was tried by the 
Senate and acquitted. The proof of his crime seemed to be plain. 
But he had offered his resignation, and it had been accepted by the 
President before the House of Representatives had voted to impeach 
him. In his case the resignation was expressly for the purpose of 
avoiding impeachment. The Senate by a majority, but not a two- 
thirds vote, decided that it had jurisdiction of his case, notwithstand¬ 
ing his resignation. But upon the final vote, more than one-third 
of the Senators present voted “not guilty ” upon each charge, and 
he was acquitted. A part of the Senators voting “not guilty,” did 
so expressly upon the ground of want of jurisdiction, because he 
was no longer an officer of the United States. This decision of the 
Senate established the precedent that a civil officer of the United 
States cannot escape impeachment by resignation. 

2.* Can an officer be impeached when he is no lonqer 
in office? 

Probably he can. The case of Belknap would not positively de • 
cide this question, but would lead to a presumption that an office* 
can, at any time in the future, be impeached for acts done while in 
office. The case of an officer whose term of office had expired,, 
perhaps many years before the impeachment, would be a different 
one from that of an officer who had resigned in order to escape 
impeachment. As such a case has never been decided by the Sen • 
ate, this question cannot be answered positively. 

IV. A TABLE OF IMPEACHMENT TRIALS. 


The following is a table of impeachment trials before the United 
States Senate: 


When. 

Whom. 

Wht. 

Result. 

1798.... 

Senator Blount... 

Intrigues with Indian 
tribes . 

Case dismissed for wait 

1803.... 

Judge Pickering.. 

Intemperance and In¬ 
sanity . 

Partiality and Injus¬ 
tice . 

of jurisdiction. 
Removed. 

1804.... 

Judge Chase. 

Acquitted. 

1880.... 

Judge Peck. 

Abuse of Judicial 
Power. 

Acquitted. 

1862 ... 

Judge Humphries 

Treason . 

Removed and dlaquali 
fled. 

Acquitted by one vote. 

1868 ... 

Pres’t Johnson... 

Violation of Tenure of 
Office Act ... 

1876.... 

Secretary Belknap 

Accepting Bribes .... 

Acquitted. 


This table of course does not include impeachment trials in At 
several States, of which there have been several. 





















UL] THE JUDICIARY DEPARTMENT. SOI 


ARTICLE III. 


THE JUDICIARY DEPARTMENT. 

u Law la the deep, august foundation, whereon peace and Justice rest. 

On the rock primeval, hidden in the past its bases be, 

Block by block the endeavoring ages built it up to what we see.” 

—Jambs Rubsbll Lowxu* 

I. The judicial department defines and applies 
the law. — The third department of the government is 
the judicial department. As the legislative department 
makes the laws, and the executive department enforces 
them, so the judicial department applies and interprets 
the laws. It is the business of the judicial department, 
in any cases brought before it, to decide whether the 
law applies to those cases, and how far it applies to 
them. 

Thus if a cnme is committed, the criminal ought to 
be punished. But in doing this, each department of 
the government has its share. The legislative depart¬ 
ment has already made a law forbidding that crime, and 
affixing certain penalties for committing it; an executive 
officer arrests the criminal on a warrant issued hy a 
judicial officer; after certain preliminaries, the accused 
is tried before a judge and jury, who are judicial 
officers. The question is, whether the accused is guilty 
of the crime charged, and whether that is a violation 
of law; that is, whether the law with its penalties 
applies to this particular case. If it is proved that it 
does, then the criminal is handed over to some executive 
officer to be punished. Now although it is the business 





202 


THE JUDICIARY DEPARTMENT. 


[Ill 


of the executive department of the government to en¬ 
force the law, no executive officer has a right to punish 
a criminal until he has been found guilty of some vio¬ 
lation of law; that is, until the judiciary department 
has decided that the law applies to this particular case. 

So with civil suits. It is the business of the judicial 
department to decide upon the proof shown in any case, 
how far the laws apply to the dispute between the 
parties to the suit. When that is decided, it is the duty 
of some executive officer to carry out the law, as it has 
been applied to this case by the courts. 

Now in thus applying the law to particular cases, it 
often becomes necessary to know just what the law is. 
Either the law is not worded clearly or two laws con¬ 
flict. It then becomes the duty of the courts to decide 
what the law really means, or which of the two laws is 
really law and which is not. In such cases the judicial 
department defines and interprets the law. 

II. The constitutionality of laws. — Here comes 
in the power of the courts to decide the constitu¬ 
tionality of laws. The highest law is the United States 
Constitution, and all United States and State laws must 
conform to it. If they conflict with it, they are null 
and void, and are no laws. If in any case which comes 
before the courts, a law or a part^of a law is found to be 
in conflict with this Constitution, the courts decide that 
the law is unconstitutional, and therefore void. Such 
a decision by any court is entitled to respect unless the 
decision is reversed by a higher court. But when such 
a decision is made by the Supreme Court of the United 
States, the highest court of the land, it is regarded as 
settling the question that the law is unconstitutional. 

It is a mistake to suppose that the Supreme Court is 
constantly deciding constitutional questions, and that all 


Ill: 1.] 


ORGANIZATION. 


208 


constitutional questions come at once before that court. 
Nothing comes before any court except in connection 
with an actual suit or trial. An unconstitutional law 
may stand for years before a case under it is carried up 
to the Supreme Court. Some things from their nature 
cannot be taken into court. And the courts always hesi¬ 
tate to decide a law to be unconstitutional, and only do 
to when the case is plain. 


SECTION 1. 


ORGANIZATION. 




£3 

35 


1 

p 

* 

r (a.) Supreme court. 




f (1) Circuit courts of ap-"] 

o 



peals. 

*z\ 



(2) Circuit courts. 

o >t 

1. Courts_ - 

(b.) Inferior 

(3) District courts. 

hH Cm 

j ^ 3 


courts ' 

(4) Court of claims .... 

^ 3 s 



(5) Supreme court of 

H 


. 

the District of Co- 

<i 



lumbia. 

C3 

Ph 


r (a.) Term of office — for life or during 

1 ° 

2. Judges. 

good behavior. 

l M 


L (b.) Salary not to be diminished. 


m, i 


in, i 


The judicial power of the United States shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may from^tbue to time 
ordain and establish. The judges both of the Supreme and inferior 
courts, shall hold their offices during good behavior, and shall at stated 
times receive for their services a compensation which shall not be dimin¬ 
ished during their continuance in office. 


I. In what courts the judicial power is vested. 
The judicial power of the United States is vested in 
one Supreme Court, and in such other courts as Con¬ 
gress may establish. 

The number and manner of organization of the courts 
have been changed from time to time, and are now as 
follows: 1 

1. The Supreme Court of the United States, com¬ 
posed of one Chief Justice and eight Associate Justices. 


1 The Territorial courts are not, properly speaking, United States courts. 
A Territory is a State under guardianship, not yet come of age. The Su- 



















THE JUDICIARY DEPARTMENT. 


[Ill: 1. 


20 4 

2. Circuit Courts of Appeals, nine in all, each composed 
of the Justice of the Supreme Court assigned to that Cir¬ 
cuit and the two Circuit Judges of that Circuit. In the 
absence of either of these his place may be filled by a 
District Judge from some district within the circuit. 
Most cases can only be appealed from a District Court 
to a Circuit Court of Appeals. Only a few important 
classes of cases can be carried up to the Supreme Court. 

3. United States Circuit Courts, nine in all, each com¬ 
posed of one Justice of the Supreme Court, one Circuit 
Judge, and one District Judge. 

4. United States District Courts, each composed of 
one District Judge. At least one of these District 

. Courts is located in each State, and in several States 
more than one. 

Special Courts — 1. The Supreme Court of the Dis¬ 
trict of Columbia, composed of a Chief Justice and four 
Associate Justices. Any one of these may hold a Dis¬ 
trict Court for the District of Columbia with the same 
jurisdiction as other District Courts of the United States. 

2. The Court of Claims, composed of a Chief Justice 
and four Associate Justices. 

II. Officers of the courts. — These courts, besides 
the judges, have the following officers: 

1. Each court has a clerk, appointed by the court 
and removable by it, who keeps all the records of the 
court, and prepares all documents issued by the court. 

2. Each District Court has a marshal, who is the ex¬ 
ecutive officer of the court, with the same powers as 
those exercised by sheriffs. He is appointed by the 
President, with the consent of the Senate, and is marshal 
for the Circuit Court whenever it sits in his district. 

preme Court of the United States has decided that Territorial courts are 
not United States courts, in any such sense as to give Territorial judges a 
life tenure of their offices. These judges are appointed for four years unless 
sooner removed. 



Ill: 1.] 


ORGANIZATION. 


205 


3. The Supreme Court and the Circuit Courts of Ap¬ 
peals have marshals appointed by the courts, and the 
Court of Claims has a bailiff, with the same duties as a 
marshal. 

4. Each District Court has a district attorney, who 
represents the United States in the prosecution of all 
criminal cases, and is the lawyer for the United States 
in all civil suits to which the United States is a party. 
The district attorney is appointed by the President, 
with the consent of the Senate, and acts as United 
States attorney also in the Circuit Court, when held in 
his district. In the Supreme Court, the Attorney Gen¬ 
eral of the United States, or one of his assistants, acts 
as United States attorney. 

5. The Supreme Court has also a reporter, appointed 
by the Supreme Court, who prepares and publishes the 
official reports of all cases brought before it. The re¬ 
ports now fill many volumes. 

III. Term of office of judges. — The term of office 
of all United States judges is for life, or during good 
behavior. As the only legal way of determining that 
a judge has not behaved well is by impeachment, this 
practically means that United States judges hold 
office for life, unless removed upon impeachment. Only 
two judges have thus been removed. A judge may, 
however, resign; and if he has served ten years, and is 
seventy years old, he will be paid his full salary for the 
remainder of his life. 

The object of making judges hold office for life, is to 
make them independent in their decisions. A judge 
ought not to be influenced in his decisions by the fear 
of removal from office, or by the hope of reappoint¬ 
ment or re-election. 

IV. Salary of judges. — The amount of the sal- 



206 


THE JUDICIARY DEPARTMENT. [HI: & 


aries of judges is left to Congress. But the Constitu¬ 
tion provides that their salaries shall not be diminished. 
They may, however, be increased. The object of this is 
to make the judges independent of Congress. 

If it ever should be thought best to decrease the sal¬ 
aries of the judges, or of any class of them, it could be 
done in regard to all judges thereafter to be appointed, 
but the salaries of those then in office would not be 
changed. But Congress can raise the salary of aU 
judges at any time, and has done so several times. 


SECTION 2. 


JURIS DICTION OF THE COURTS. 


Casts 


► 

(a.) Arising under this Con¬ 
stitution, the laws of 
the U. S. or treaties.. 111,8, i 

■ (b.) Affecting ambassadors 

or consuls. . .. 111,8,1 

(c.) Of admiralty or mari¬ 
time jurisdiction. Ill, 8, X 




►*» 

H 

e 


o 

KH 

H 

O 

HH 

P 

m 

« 

P 

*-2 


« 

B 

W 


Controversies 


(a.) To which the U. S. is a 

party. Ill, 8, 1 

(b.) Between two or more 

States. HI, 8,1 

(c.) Of a State against citi¬ 
zens of another State 

. Ill, 2, 1, and Am. XI 

(d.) Between citizens of dif¬ 
ferent States. •• 111,8,1 

(e.) Concerning land grants 

of ditferent States.... 4 111,8,1 
(f.)Of a State against for¬ 
eigners ... Ill, 2, 1, and Am. XI 
(g.) Between foreigners and 

citizens. Ill, 8,1 


8. Original juris¬ 
diction OP SU¬ 
PREME COURT.. 


8. Appellate jur¬ 
isdiction. 


v. 


(a.) In cases affecting ambas¬ 
sadors and consuls.... 
(b.) When a State is a party. 

' (a.) In all other cases. 

. (b.) Except as modified by 
Congress.. 


Ill, 2, 8 
iii, a, s 

III, 8, 8 























HI: 2, 1J EXTENT OP JURISDICTI OH. #07 

CLAUSE 1. 

EXTENT OF JURISDICTION. . 

The Judicial power shall extend to all cases, in law and equity, arising under 
this Constitution, the laws of the United States, and treaties made or 
which shall be made, under their authority; to all cases affecting ambas¬ 
sadors, other public ministers, and consuls; to all cases of admiralty 
and maritime jurisdiction; to controversies to which the United States 
shall be a party; to controversies between tw T o or more States; between 
a State and citizens of another State: between citizens of different 
States; between citizens of the same State claiming lands under grants 
of different States, and between a State or the citizens thereof, and 
foreign States, citizens or subjects. 

I. Modified by the eleventh amendment. — This 
clause has been modified by the eleventh amendment, 
which feads as follows: 

“The judicial power of the United States shall not be construed to ex¬ 
tend to any suit in law or equity, commenced or prosecuted against one of 
the United States by citizens of another State, or by citizens or subjects of 
any foreign State.” 

This amendment abolishes the power of individuals 
to sue a State in the United States courts. It leaves 
everybody the power of suing a State in its own courts, 
if the States allow it. 

II. Cases in law and equity. — A case is an al¬ 
leged state of facts, brought before a court in a legal 
way by some one who is aggrieved thereby. The 
courts can only act on cases. They cannot decide on 
legal questions, except as they are brought before them 
in actual cases, either as criminal trials or civil suits. 
Thus a legal question may be disputed a long time be¬ 
fore it is settled by a judicial decision, because no case 
has been brought before the courts which involves that 
question. 

There are questions in regard to the meaning of some 
clauses of the Constitution which have never been de- 



208 THE JUDICIARY DEPARTMENT. [HI: 2, 1. 

cided, because no case has arisen which brought them 
before the courts. 

These words “ cases in law and equity,” refer to dis¬ 
tinctions made by English law, from which our law is 
derived. When the Constitution was adopted, there 
were four classes of courts in England, each having its 
own officers, its own methods of procedure, and its own 
system of law. These courts were called law courts, 
equity courts, admiralty courts and ecclesiastical courts; 
and the law administered by each was called common 
law, equity, admiralty and maritime law and canon law. 
As there was to be no State church in this country, 
canon law and ecclesiastical courts were needless, and are 
therefore not mentioned in this Constitution. The 
other three divisions of English law are named in this 
paragraph. This clause of the Constitution gives the 
United States courts all cases in admiralty or maritime 
law, and takes them away from the State courts. It 
also gives the United States courts a part of the cases 
which may arise in law or equity, and leaves the rest of 
the cases in law and equity to the State courts. 

Under the power given Congress to organize inferior 
courts, three sets of courts, for law, equity and admiralty, 
might have been organized in imitation of the English 
courts. Congress did not do so. Only one set of courts 
was organized, and they were made courts of law, 
equity and admiralty alike. But the forms of proced¬ 
ure and the body of law remains different, for each class 
of cases. 

No brief definition can be given of the difference be¬ 
tween law and equity. Two distinctions in the meth¬ 
ods of procedure, however, can be easily remembered 
There are no juries in equity cases, and there are no 
criminal trials. 





Ill: 2, 1.] 


EXTENT OF JURISDICTION. 


209 


III. The common law. — The common law of En¬ 
gland, in its widest sense, is that body of customs, prece¬ 
dents and forms which had gradually grown up in the 
course of English history. These were law in the col¬ 
onies as well as in the mother country. The colonists, 
in rebelling against the rule of England, did not wish 
to lose all that was valuable in the institutions of 
England. Just as their State and National govern¬ 
ments were formed largely on the model of the English 
government, so the practice of their courts has been 
largely the same as the practice of the English courts. 
In the United States courts, and in most of the State 
courts, the English common law as it stood at the time 
of the Revolutionary War, and so far as it has not been 
repealed by our Constitution and statute laws, is held as 
good law to-day. A notable exception is the case of 
Louisiana, which we acquired from France, where the 
courts follow the forms and customs of French law. 

IV. Cases under the constitution, laws and 
treaties. — It is plain that the United States courts 
should have jurisdiction of all cases arising under the 
laws of the United States. By Article VI, Clause 2, 
these are made the supreme law of the land, and over¬ 
rule all State laws or constitutions, when there is any 
conflict between them. 

The United States courts are bound to maintain this 
supreme law of the land in any case brought before 
them. 

It should be remembered that the subjects upon which the United 
States can make laws are limited by this Constitution. The United 
States has full jurisdiction only in the District of Columbia, in the 
territories, on the high seas, in the United States forts, arsenals and 
dockyards, and on United States ships. Everywhere else its juris¬ 
diction is limited. Thus if a robbery is committed in any of the 
places named above, the person accused of it will be tried in the 


210 


THE JUDICIARY DEPARTMENT. [HI: 2, 1. 


United States courts and by United States law; 1 but if it is commit¬ 
ted in the jurisdiction of a State, it will be tried before the courts and 
by the laws of that State. But robbery of the mail, although com¬ 
mitted within a State, would be tried before a United States court 
and by United States laws, because the United States has jurisdiction 
over post offices and post roads. 

Cases may arise under the Constitution, directly, where there is 
no United States statute law involved. Thus the State of New 
Hampshire passed a law changing the charter of Dartmouth Col¬ 
lege. As the State courts refused to declare the law unconstitu¬ 
tional, the case was carried into the United States Supreme Court. 
The Supreme Court decided that the charter of a corporation is a 
contract between the State and the corporation, which cannot 
be changed without the consent of both parties. As the State law 
impaired the obligation of a contract (I, 10, 1), the Supreme Court 
decided it to be unconstitutional, and therefore null and void. 
This was a case under the United States Constitution. 

Cases may also arise under treaties made with foreign powers.. 
These treaties, while they last, are laws of the United States, and 
binding on every citizen. The punishment for violation of treaties 
necessarily belongs to the United States courts. Under the Con¬ 
federation, when we had no United States court, these cases came 
before State courts, which generally failed to punish their violation. 
The consequence was, our reputation as a nation suffered, and we 
might easily have been involved in a war, because of neglect to 
compel our citizens to obey our own treaties. 

Y. Cases affecting ambassadors, etc. — All cases 
affecting ambassadors, other public ministers, or con¬ 
suls, are tried in the United States courts. These are 
officers of foreign nations, and the United States are 
bound to protect them, and treat them according to the 
rules of international law. It is therefore necessary 
that all cases affecting them should be tried in the 
United States courts, not in State courts, as the United 
States is responsible for their treatment. 

1 If in an organized territory, the trial would be under the laws of that 
territory. But these territorial laws are only made laws because an act of 
Congress has allowed the territory to make its own laws within certain 
limits. Territorial laws are thus virtually United States laws 



i 


III: 2, 1.] EXTENT OF JURISDICTION. 2U 

But not all cases affecting ambassadors can be tried by our courts, 
for by the law of nations, ambassadors and other public ministers 
are not subject to the criminal or civil law of the country to which 
they are ambassadors, but are subject to the laws of their own 
country. Thus, if the English ambassador to this country should 
commit a crime, he could not be tried here, but our government 
would have to write a statement of the case to the English govern¬ 
ment, whereupon he would be recalled and tried in England under 
English laws. The same is true of civil suits. The ambassador of 
a foreign power cannot be sued in this country, but if he run in debt 
and refuse to pay, he must be sued in the country to which he be¬ 
longs. The family and officers and servants of an ambassador 
share in these privileges in a less degree. But consuls have no such 
privileges under the law of nations, except in heathen or Moham¬ 
medan countries. 

VI. Cases of admiralty and maritime jurisdic¬ 
tion. — These are cases arising on the high seas and 
navigable waters. It is a very difficult question to ex¬ 
actly define the limits of this kind of jurisdiction. The 
courts have not been able to doit; but have made many 
conflicting decisions in regard to the extent of maritime 
jurisdiction. 

In general terms, we may say admiralty and maritime jurisdiction 
include: 

1. All questions of prizes and captures at sea. 

2. The trial of all crimes committed on the high seas or water* 
of the sea outside of any country, and of all offenses against the law 
of nations. 

3. All cases involving damages done on the high seas, and sorns 
cases on waters of the sea where the tide ebbs and flows. 

4. Many cases concerning contracts or claims for services or sale* 
at sea or in foreign ports. 

Most of the above classes of cases evidently belong to the United 
States courts, because States have no jurisdiction over them. (Sec, 
I, 8, 10 and 11.) 

VII. Controversies to which the United States 
is A party. — The United States may be a party to a 
controversy either, 





212 


THE JUDICIARY DEPARTMENT. [HI: 2, JU 


1. As prosecutor in a criminal case arising under 
United States law. All such cases are prosecuted in 
the name and by the authority of the United States. 
The actual work of the prosecution is done by the At¬ 
torney General, or by the District Attorney of the 
district in which the case belongs. He may be assisted 
by other lawyers, if necessary. 

2. As plaintiff in a civil suit. These are prosecuted 
when the United States has a legal claim against any one. 

In violations of the revenue, there may be both a 
criminal prosecution and a civil suit. 

3. As defendant in a civil suit. If any one has a 
claim against the United States, which the proper 
officer refuses to pay, he may begin a suit in the Court 
of Claims and in no other court. But if the case is de¬ 
cided against the United States, the claim cannot be 
paid until Congress makes an appropriation for it 
(I, 9, 6). 

YIII. Controversies between two or more 
states. — It is evident that these controversies must 
be tried in the United States courts, unless they can be 
settled by arbitration. These suits must be begun in 
the Supreme Court. 

No District or Circuit Court has jurisdiction in any 
case in which a State is a party (see Clause 2). When 
the Constitution was adopted, there were many unset¬ 
tled controversies between States, especially in regard 
to territory. Before the Revolution, controversies be¬ 
tween the colonies were heard before the King in coun¬ 
cil. During the Revolution, there was no tribunal to 
decide controversies between the States. The disputes 
between them in regard to land grants led to much 
trouble and violence, and might easily have led to war 
between the States. 


in: 2 , 1.] JURISDICTION OF THE COURTS. 


213 


The Articles of Confederation provided for the trial 
of such controversies by commissioners. These com¬ 
missioners acted really as arbitrators, but had no 
authority to enforce their decisions. The Supreme 
Court can now decide cases between States, with author¬ 
ity, and its decision is final, and must be obeyed. 

IX. Controversies between a state and citizens 
of another state. — Suits brought by a State against 
citizens of another State must be tried in the Supreme 
Court. Other United States courts have no jurisdiction 
(Clause 2). Citizens of one State cannot sue another 
State, except in the courts of that State (Amend¬ 
ment IX). 

X. Controversies between citizens of differ¬ 
ent states. —A United States court will be likely to 
be more impartial than a State court, in a suit between 
its own citizens and the citizens of another State, Con¬ 
troversies between citizens of different States are there¬ 
fore tried in the United States courts. 

But the law which regulates such cases is the law of 
the State in which the case occurs. Thus if a citizen of 
Wisconsin owes a citizen of New York, the citizen of 
New York may sue in one of the United States district 
courts in Wisconsin. But that court will try the suit 
according to the laws of Wisconsin; and in levying an 
execution, the Wisconsin debtor would be entitled to 
the exemption provided by Wisconsin law. Congress 
cannot legislate, except for certain things, within the 
limits of a State (I, 8). But "the United States courts 
do not always follow the decisions of the State courts 
upon the law of each State. 

Therefore, when the United States courts take juris¬ 
diction of controversies between citizens of different 


214 


THE JUDICIARY DEPARTMENT. [HI: 2, 1. 


States, they do not take United States law, but State 
law, when the subject in dispute is not one of those cov¬ 
ered by the powers of Congress. 

A citizen of the United States is a citizen of the State 
in which he resides (Amendment XIV). But a citizen 
of a territory or of the District of Columbia is not a cit¬ 
izen of any State, and is not included in this provision. 

XI. CONTROVERSIES ABOUT LAND GRANTS OF DIF¬ 
FERENT states. — Even in cases between citizens of the 
same State, when the controversy is respecting land 
claimed under grants from different States, the United 
States courts have jurisdiction. Thus all controversies 
respecting conflicting land grants go into the United 
States courts. In these cases, although the States are 
not, in form, parties to the suit, they are involved in it. 
When a State grants land to individuals, it guarantees 
the title to the land. If the title is not good, the State 
is bound in good faith to make the title good or pay 
damages. Every State is therefore interested in the 
titles to land it has granted, and all the more so because 
a single case will usually involve the questions of law 
and fact on which the titles to many tracts of land 
depend. 

XII. Conflicting claims of states to land. 

The charters of several of the colonies and the grants to proprie¬ 
tors, given by different sovereigns of England, were generally 
drawn very loosely, and often overlapped one another. As the 
country settled, this led to controversies between the colonies, some 
of which had been settled by the King in council, and some of 
which were left undecided at the time of the Revolutionary War. 
The States had granted land under these conflicting claims to two 
or more sets of settlers, who fought it out in legal and illegal ways, 
as men will fight when the title to their homes is in question. The 
chief disputes in regard to territory and land grants made by States 
were: 





in: 2, 1.] JURISDICTION OF THE COURTS. 


215 


1. The whole State of Vermont, which was claimed both by New 
Hampshire and New York. 

2. A large part of western New York was claimed by Massachu¬ 
setts, as well as by New York. 

3. Northern Pennsylvania was claimed by Connecticut, as well as 
by Pennsylvania. 

4. The Northwest Territory (Ohio, Indiana, Illinois, Michigan 
and Wisconsin) was claimed by Virginia by right of conquest, and 
parts of it by other States under their charters. 

Besides these, there were questions of the exact boundary line 
between almost all neighboring States. These questions were 
some of them settled just before the Constitution was adopted, and 
others afterwards. In general we may say, that men who had 
bought land and settled on it were secured in their titles to it, but 
only after a great deal of trouble; and that the State boundarie* 
were settled as they now stand. 

XIII. Controversies between a state, or the 

CITIZENS THEREOF, AND FOREIGN STATES, CITIZENS OR 

subjects. — All cases to which foreign states or their 
citizens or subjects are parties, come before the United 
States courts. It is the United States government 
which is held responsible for our treatment of foreign¬ 
ers. The United States ought therefore to have juris¬ 
diction over cases in which foreigners are parties. But 
foreigners cannot sue a State in the United State* 
courts. (Amendment XI.) 

XIV. Judicial powers exercised bt other de¬ 
partments OF THE GOVERNMENT. 

/ 

A. Judicial powers of the legislative department: 

1. Power of punishing members for misconduct. (I, 5, 2.) 

2. Power of punishing other persons for contempt. 

8. Power of impeachment and removal from office. (I, 2, 5, 
and I, 3, 6 and 7, and II, 4.) 

4. But no bill of attainder or ex post facto law. (I, 9, 8.) 


216 


THE JUDICIARY DEPARTMENT. 


[Ill: 2, 2. 


B. Judicial powers of the executive department: 

1. The President’s power to pardon. (II, 2, 1.) 

2. Powers of courts martial. (I, 8, 14, and Am. V.) 

3. Power under military law. (I, 9, 2.) 

4. But cannot make unwarrantable searches and seizure*. 

(Am. IV.) 

5. And cannot hold persons for trial without a presentment 

or indictment of a grand jury. (Am. V.) 

6. Nor hold a person for trial twice for the same offense. 

(Am. V.) 

7. Nor deprive any person of life, liberty or property without 

due process of law. (Am. V.) 

CLAUSE 2. 

ORIGINAL AND APPELLATE JURISDICTION. 

In all cases affecting ambassadors, other public ministers and consuls, an4 
those in which the State shall be a party, the Supreme Court shall hara 
original jurisdiction. In all the other cases before mentioned, the Su¬ 
preme Court shall have appellate jurisdiction, both as to law and fact? 
with such exceptions, and under such regulations as the Congress shaU 
make. 

I. Original jurisdiction of the supreme court. — 
When it is said that the Supreme Court has original 
jurisdiction in certain cases, it is meant that these cases 
must be begun in the Supreme Court. Other cases may 
reach the Supreme Court, but only when they have been 
tried in lower courts, and an appeal has been taken 
from their decisions to the Supreme Court. 

The Supreme Court has original jurisdiction in two 
classes of cases only: 

1. In all cases affecting ambassadors, other public 
ministers and consuls. 

2. In all cases where a State is a party. 

In these cases original jurisdiction is given to tha 
Supreme Court, not because the cases are always im¬ 
portant, but because there are important parties to tha 

•nit. 


Ill: 2, 3.] 


TRIAL OF CRIMES. 


217 


II. Appellate jurisdiction of the supreme court. 
When it is said that the Supreme Court has appel¬ 
late jurisdiction in other cases, it is meant that other 
cases must be begun in some lower court, but may he 
taken to the Supreme Court on an appeal from the de¬ 
cisions of the lower courts. This appellate jurisdiction 
is to have such exceptions and he under such regula¬ 
tions as Congress shall make by law. 

CLAUSE 3. 


TRIAL OF CRIMES. 



' 1. By jury, except in impeachment. Ill, t, S 

2. Held in State and district where the crime is 

committed. Ill, 2, 3, and Am. VI 

3. If not committed in any State, where directed by 

law.. . Ill, 8, 8 

^ 4. Forms of trial. (See Bill of Rights.) 


The trial of all crimes, except in cases of impeachment, shall be by jury; 
and such trial shall be held in the State where the said crimes shall have 
been committed; but when not committed within any State, the trial 
shall be at such place or places as the Congress may by law have directed. 

[See also Amendments V, VI, VII.] 


I. Trial by jury. — A jury consists of twelve men 
impartially chosen. All questions of fact in crimij^al 
trials are decided by the jury; and questions of law are 
decided by the judge, with some exceptions. No person 
can be convicted of any crime in a United States court 
unless a jury unanimously find him guilty. If the 
jury unanimously find him not guilty, he is released, 
and can never be tried again on that charge. If the 
jury disagree, a new trial must be had with a new jury. 

It is required by amendment VII, that in all suits at 
common law, where the amount is more than twenty 
dollars, the right of trial by jury shall be preserved. 
This does not include equity cases, or admiralty or mai> 











218 


THE JUDICIARY DEPARTMENT. [HI: 2, 8. 


itime cases, which are not governed by the common law. 
These cases are often so complicated that it requires 
skilled judges to decide them, and a jury might do great 
injustice through ignorance of the law which governs 

these cases. 

Cases of impeachment have already been provided 
for. An impeachment trial is not a criminal trial, but 
a political proceeding to remove from office an un¬ 
worthy officer. This does not prevent such an officer 
from being also tried in the courts for a crime, if he has 
committed one. Cases of impeachment are therefore 
not tried before a jury, but before the Senate sitting as 
a high court of impeachment. 

A large part of all the cases which come before the 
district and circuit courts require the aid of a jury. A 
jury is thus a part of the judicial department, for the 
time being. This is one of the checks and balances of 
our Constitution, that judges shall not decide the 
plainer questions of fact; but that these are left to the 
judgment of twelve citizens, who are not lawyers. 

II. Where trials are held. — Criminal trials must 
be held in the State where the crime was committed. 
Each State has at least one district court, so that there 
is no difficulty to the United States. This provision is 
intended as a benefit to the accused. It leaves him 
nearer to his friends, makes it easier to procure his wit¬ 
nesses, lessens his expenses, and gives him the benefit 
of the natural prejudices of the jury for a citizen of 
tlieir own State. 

Where crimes are not committed in any State, they 
are tried in some specified court. When committed 
on the high seas, they are tried in the State where the 
vessel first arrives. 


in: 3, 1.] 


TREASON. 


219 


III. Privileges of accused persons. 

For these, see Amendments IY, Y, YI and VIII. These privi¬ 
leges regulate the methods of procedure in courts, and therefore 
might be treated here. But they belong properly under the Bill of 
Rights, where trial by jury really also belongs. 


SECTION 3. 


TREASON. 


P* 

9 

l-H 

o 

kH 

Q 

§ 

W 

e 


p 

P 


1. Dxvxxrnox. 


* 

o 


oo 


< 

H 

8. Mods or Coh- 

Ph 

E“* 

TICTIOK. 

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8. PUKISHXSNT ... 




(a.) Leving war against the 

U. S. 

(b.) Or adhering to their en¬ 
emies, giving them aid 
and comfort. 

(a.) Testimony of two wit¬ 
nesses to the same act 
(b.) Confession in open court 

(a.) Declared by Congress... 
(b.) But no corruption of 
blood or forfeiture, ex¬ 
cept during the life of 
the traitor. 


IH» ** 1 

111 * 8,1 

hi, a, i 
ill, 8, l 

HI. 8, > 


in* a, 9 


CLAUSE 1. 


THE TRIAL OF TREASON. 

Treason against the United States shall consist only in levying war against 
them, or in adhering to their enemies, giving them aid and comfort. No 
person shall be convicted of treason unless on the testimony of two 
witnesses to the same overt act, or on confession in open court. 

I. The reasons for this section. — Treason is the 
highest crime against society. It is an attempt to sub¬ 
vert the government, and it deserves severe punish¬ 
ment. But the history of England is full of instances 
of that being called treason which was not really trea¬ 
son; of innocent persons being convicted of treason, 
and of extreme and oppressive punishments for treason. 
To prevent such things in this country, this section 
was put into the Constitution. 














220 


THE JUDICIARY DEPARTMENT. [Ill: 3, 1, 


II. The definition of treason. — Treason against 
the United States is defined to consist only in levying 
war against them, or in adhering to their enemies, giv¬ 
ing them aid and comfort. These words are taken from 
an old English statute, passed five hundred years ago, * 1 2 3 * 5 
which defines treason against the King of England, 
and which was in force at the time of the Revolution. 
Other things were made treason by this statute, but 
these two things were the only ones which the framers 
of the Constitution thought should be made treason 
against the United States. 

It is not treason to conspire against the United States, 
or to agree to levy war, any more than it is murder to 
conspire to commit murder. But it is a less crime. It 
is not until the war is actually levied that there can be 
treason. But as soon as a rebellion against the govern¬ 
ment or a war by a foreign power is actually begun, 
then any assistance given the enemy is treason. In 
time of war or rebellion we ought to be careful of our 
acts, that we do not aid the enemy indirectly. When 
the country is at war, she calls for the help of all her 
citizens, and at least demands that they shall not help 
her enemies. 

III. The proof of treason. — No person ought to 
be convicted of so odious a crime as treason except on 


*This is the famous statute of 25 Edward III., which defines treason to be: 

1. To compass or imagine the death of the King, Queen, or their eldest 
eon and heir. 

2. To violate the King’s wife, or his eldest daughter unmarried, or the 
wife of his eldest son and heir. 

3. To levy war against the King in his realm. 

4 To adhere to the King’s enemies in the realm, by giving them aid and 
eomfort, or by sending them intelligence or provisions, or selling them 
arms. 

5. To slay the chancellor, treasurer, or the King’s justice, while in thei* 
place administering justice. 

Many other things were at one time or another made treason in England. 
Our Constitution adopts the third and fourth of the above only. 



111:3, 2.J 


TREASON. 


221 


the clearest evidence. The Constitution, therefore, re¬ 
quires that the charge should be proved, either — 

1. By the testimony of two witnesses to the samt 
act. This act must be an overt act, that is, an open act 
These witnesses must testify to the same act; any num¬ 
ber of witnesses each to a separate act are not allowed. 
This is to give an opportunity to compare the testimony 
together and to detect false swearing. 

2. Or by a confession in open court. A confession 
in private may easily be misunderstood or misstated by 
the person to whom the confession was made. The 
confession, therefore, must be made in open court. It 
would be sufficient for the accused to simply plead 
guilty at the trial to make it a confession in open court. 

CLAUSE 2. 

THE PUNISHMENT OF TREASON. 

The Congress shall have power to declare the punishment of treason, but 
no attainder of treason shall work corruption of blood or forfeiture ex¬ 
cept during the life of the person attainted. 

a 

I. The reason for this clause. — The punish¬ 
ment of treason under English law was very severe. 
The traitor was put to death in a barbarous manner; * 1 2 3 4 
his whole property was confiscated, he was attainted, 
and this corruption of blood descended to his posterity 
so that no one could inherit from him or through 
him. 

i The details of the death of a convicted traitor in England were: 

1. He was drawn to the place of execution on a hurdle or sledge. In ax 
cient times he was dragged on the ground. 

2. He was hanged by the neck, but cut down before he was dead. 

3. His heart and entrails were drawn out of his body while he was still 
alive, and burnt in his presence. 

4. His head was cut off, and his body divided into four quarters, which 
were in ancient times stuck over the gateways of London or other cities. 

The above named punishments are commonly referred to as hanging, 
drawing and quartering. The King could commute this punishment to b3» 
heading. Women were only hanged. 



222 


THE JUDICIARY DEPARTMENT. 


[Ill: 3, 2. 


Such extreme and barbarous punishments are forever 
forbidden in the United States by the Constitution. 
Congress has declared the punishment of treason to be 
death by hanging. A less punishment may be inflicted, 
but not less than imprisonment for five years and a fine 
of ten thousand dollars. 

II. Attainder or treason. — The conviction of 
treason under the common law of England involved 
attainder , that is, it tainted the person so convicted. 
Persons could also be attainted by a bill of attainder 
without a trial, which has the same effect. A convic¬ 
tion of treason of itself brought an attainder of treason 
on the person convicted. No bill of attainder was 
needed in such a case. 

This attainder in either case worked corruption of 
blood and forfeiture. Any person attainted, by that 
fact became corrupt in blood, and forfeited all his prop¬ 
erty, titles and honors. 

The Constitution forbids bills of attainder (I, 9, 3, and 
I, 10, 1), so that no person can be attainted except by a 
regular trial, and then only for treason as defined in this 
section. But it does not abolish attainder of treason. 
It only limits its effects to the person thus attainted. 

III. Corruption of blood. — Under the common 
law, corruption of blood follows from any attainder. 
“ By corruption of blood all inheritable qualities are 
destroyed, so that an attainted person can neither in¬ 
herit lands nor other hereditaments from his ancestors, 
nor retain those he is already in possession of, nor trans¬ 
mit them to any heir. And this destruction of all in¬ 
heritable qualities is so complete that it obstructs all 
descents to his posterity, whenever they are obliged to 
derive a title through him to any estate’of a remote an¬ 
cestor. So that if a father commits treason, and is at- 


Ill: 3, 2.J 


TREASON. 


223 


tainted and suffers death, and then the grandfather dies, 
his grandson cannot inherit any estate from his grand¬ 
father, for he must claim through his father, who could 
convey to him no inheritable blood. Thus the inno¬ 
cent are made the victims of a guilt in which they did 
not, and perhaps could not, participate, and the sin is 
visited upon remote generations.” 1 This injustice of the 
English common law is forbidden by this clause. 

IV. Forfeiture. — By the English common law, 
an attainder of treason worked not only corruption of 
blood but also forfeiture; that is, a person convicted 
of treason forfeited all his property of every descrip¬ 
tion, and all his titles and honors. Persons were often 
convicted of treason purposely to confiscate their prop¬ 
erty. “ Rapacity has been thus stimulated to exert it¬ 
self in the service of the most corrupt tyranny; and 
tyranny has been thus furnished with new opportunities 
of indulging its malignity and revenge, of gratifying its 
envy of the rich and good, and of increasing its means 
to reward favorites and secure retainers for the worst 
deeds.” * * 

The Constitution limits this by providing that no at¬ 
tainder of treason shall work corruption of blood or 
forfeiture, except during the life of the person attainted. 
A conviction of treason in the United States does not 
of itself carry any corruption of blood or forfeiture. 
Treason can be punished in such way as is prescribed by 
law, like any other offense; but the common law pun¬ 
ishments of treason are abolished by the Constitution. 
If the Constitution had not abolished them, it might 
have been claimed that as the common law is in force 
in this country so far as it is not expressly repealed. 


* Story on the Constitution, section 1299. 

* Story on the Constitution, section 1800. 




224 


THE JUDICIARY DEPARTMENT. [HI; 3, 8» 


that these common law punishments for treason were 
in force in the United States. 

V. Disputed questions. 

1. Can Congress prescribe , as the punishment of treason, the con¬ 
fiscation of all the traitor's property ? It is agreed that a fine can, 
be imposed, which might be in some cases the same thing as a 
confiscation of all the traitor’s property. It is also agreed that 
Congress can by law confiscate all the property of persons duly con¬ 
victed of treason, if the confiscation lasts only during their lives, 
and if at their deaths the property confiscated is allowed to revert 
to their heirs. But if Congress should provide by law that th© 
property of persons convicted of treason should be confiscated for¬ 
ever, would that be constitutional ? The case has never been decided 
by the courts. Most writers on the Constitution seem to think that 
such a law would be constitutional. But because of the doubt, 
such a law has never been passed. 

2. Can States punish treason ? As a fact, the Constitutions and 
statutes of all or nearly all the States provide for the punishment 
of treason against themselves. Persons have been convicted and 
hung for treason against a State. The case of John Brown, who 
was hung for treason against Virginia, is the most noteworthy one. 
But some writers on the Constitution hold, that as a State has no 
complete sovereignty, there can be no treason against it. No case 
has ever been decided in the Supreme Court. 

A State cannot punish treason against the United States. But 
if, under this Constitution, there can be such a thing as treason 
against a State, then the State can define and punish it. 

VI. Treason trials. 

During and after the Revolutionary war many persons were 
attainted of treason against their States for acting with the royal 
troops. A large amount of property was confiscated, much of 
which was afterwards restored. This was before the adoption of 
this Constitution. Under the United States laws, no person has 
ever been convicted of treason. The two most famous cases, were 
the trial of Aaron Burr and the case of Jefferson Davis. 

Aaron Burr had been Vice President of the United States, and 
had lacked only one vote in the House of Representatives of an 
election as President. Disappointed of his ambition to be Presi¬ 
dent, he engaged in a scheme, the object of which was supposed to 


in: 3, 2.] 


TREASON. 


225 


be to set up an independent nation west ot the Alleghany Mount¬ 
ains. But his scheme, whatever it was, was frustrated, and he was 
arrested and tried for treason in 1807. He was acquitted for lack 
of legal proof; but was universally despised. 

Jefferson Davis was one of the conspirators in the plot of the 
Southern leaders to force the Southern Statef into secession, and 
organize a separate nation in the South. When the scheme was 
accomplished, he was elected President of the Southern Confeder¬ 
acy. When the civil war was closed by the victory of the Union 
arms, he was captured and held for trial. But his case was never 
brought to trial. No other nation ever went through a civil war 
without trials and nunishments of treason, 
o 




RELATIONS OF THE STATES. 


RELATIONS OF THE STATES, 


226 


[IV. 


ARTICLE IV. 


RELATIONS OF THE STATES. 

A slow-developed strength awaits 
Completion in a painful school; 

Phantoms of other forms of rule 
New Majesties of mighty States.” 

—Tenktbov. 


ANALYSIS OF THIS ARTICLE. 


* 

I. State Bio 
ords . 


1. Each State shall give full faith to 

the records of every other State. I>, 1 

2. Congress shall prescribe the man¬ 

ner of proof. IV, 1 


II. Inhabitants 

or OTH1B 

Statbs. 



V. 


1. Privileges of citizens shall be 

equal. . 

2. Fugitive criminals shall be given 

up. 

8. Fugitive slaves shall be given up. 


IV, M 

IV, At 
IV, 2,1 


1 




1. Admission qf 
new States. 


(a.) Admitted by 
Congress .. 
(b.) States not 
changed 
without 
their own 
consent ... 


ILL H*w States 
and Terri- , 

torus. 


8. Territory of 
the United • 
States. _ 


(a.) Congress 
may dis¬ 
pose of it., 
(b.) C o n g r e s s 
may legis¬ 
late for it.. 


(c.) State claims 
not affected 
(d.) U. S. claims 
not affected 


IV, 8,1 

IV, 8,1 

IV, 8,1 

IV, 8,1 
IV, 8,1 
IV, 8,1 


IV. Protection 
or States .. 


v. 


1. Guarantee of republican govern¬ 

ment. 

2. Protection against invasion. 

8. Protection against domestic vio¬ 
lence . 


IV, 4 
IV, 4 


IV. 4 





















IV: 1.J 


STATE RECORDS. 


m 


r 


< 


V. POWIB* O? 

State Gov- 
1SNHINT 
OVER U. S. * 
Go TURK- 
MENT. 


V 


1. To elect U. S. Senators. I* *♦ I 

2. To prescribe details of elections to 

Congress (subject to the action 

of Congress). I, 4, ] 

8. To prescribe the manner of ap¬ 


pointing presidential electors.. II, 2, 1 
4. To vote on proposed amendments, V. 


VI. Other powers of State governments (see 000). 


VII. States sub¬ 
ordinate TO 
U. S. 


1. State judges bound by U. S. Con¬ 
stitution, in spite of State laws, Vt, 8 
8. State officers and legislators to 
swear to support U. S. Constitu¬ 
tion.yx, | 


SECTION 1. 

STATE RECORDS. 

JTull faith and credit shall be given in each State to the public acts, records 
and judicial proceedings of every other State. And the Congress may 
by general laws prescribe the manner in which such acts, records and 
proceedings shall be proved, and the effect thereof. 

I. The reason - for this section. — The laws and 
records of one nation are not accepted in the courts of 
another nation with full faith and credit, but only 
under certain limitations and conditions. But as we 
are one nation, and not a collection of nations, it is 
provided that the official records of one State shall have 
full faith and credit given them in every other State. 
These records are not to be treated as the records of a 
foreign State, but as the records of another part of the 
same nation. 

II. What documents are embraced in this sec¬ 
tion. — The following documents are embraced in this 
clause: 

1. Public acts; that is, the Constitutions and statute 
laws of the States. 

2. Public records; such as registration of deeds and 










228 RELATIONS OF THE STATES. [IV: 2, t. 

wills, records of marriages, and journals of the legisla¬ 
ture. 

3. Judicial proceedings; that is, judgments, writs and 
processes of courts, and published reports of decisions. 

III. Mailer of proof. — Congress may by law 
prescribe the manner of proving these documents, and 
the effect thereof. Congress has done this, and there is 
now one uniform manner of proving public documents. 
And such documents have the same effect in any State 
as they have by law or usage in their own State. 

IV. The value of this section. — The principal 
value of this clause is to prevent endless controversies 
over the titles to property. Where these have been 
settled in one State, they are held good in every other 
State. A man cannot begin over again a law suit which 
has once been settled, by simply moving from one State 
into another. 


SECTION 2. 

relations of states to the inhabitants of other 

STATES. 

ft • 

CLAUSE 1. 

PRIVILEGES OF CITIZENS. 

The citizens of each State shall be entitled to all privileges and Immunities 

of citizens in the several States. 

I. Privileges of citizens of one state in any 
other state. — As this is one nation, not a collec¬ 
tion of nations, it is plain that intercourse between the 
States should be as free as possible. This clause pro¬ 
vides that no State shall give its own citizens any spe¬ 
cial privileges over the citizens of sister States. If any one 





IV: 2, 2.1 


FUGITIVE CRIMINALS. 


229 


is a citizen in Illinois, for instance, and goes into Wiscon¬ 
sin, he is entitled to all the privileges of a citizen of 
Wisconsin, and under the same limitations. He can en¬ 
gage in any business, hold any property, be married or 
divorced, and be protected by the laws, under the same 
conditions as a citizen of Wisconsin. But if the State 
of Illinois gives its citizens some special privilege which 
the State of Wisconsin does not give, he does not carry 
that privilege with him in going to Wisconsin. When 
there he has all the privileges of citizens of Wisconsin, 
but no more. 1 

This clause should now he studied in connection with 
the first clause of the fourteenth amendment. Two 
questions are reserved for that place: 1. Who are citi¬ 
zens of the United States? 2. What are the privileges 
and immunities of citizens? 

.CLAUSE 2. 

FUGITIVE CRIMINALS. 

A person charged In any State with treason, felony, or other crime, who 
shall flee from Justice, and be found in another State, shall, on demand 
of the executive authority of the State from which he fled, be delivered 
up, to be removed to the State having jurisdiction of the crime. 

I. Extradition laws. — In ancient times, criminals 
who escaped into another country, generally escaped 
punishment thereby. Civilized nations now generally 
give up escaped criminals to one another. This is done 
by virtue of special treaties, called extradition treaties. 
Criminals are usually given up by one nation to another 
only for such crimes as are named in the treaties and 

1 Thus the Supreme Court decided that a law of Maryland was unconsti¬ 
tutional, which imposed a license on all traveling salesmen who were not 
citizens of Maryland. If the law had imposed the license on all traveling 
salesmen, it would have been constitutional. But as it discriminated against 
citizens of other States, it violated this clause of the United States Consti¬ 
tution. 






830 


RELATIONS OF THE STATES. 


[IV: 2, 2 , 


under the forms prescribed by them. But as a matter 
of courtesy, nations which have no extradition treaties 
with one another, often give up each other’s criminals. 

II. State extradition of criminals. — As we are 
one nation, this extradition of criminals between the 
States is made to depend not upon treaties, but upon the 
Constitution. This provision has been made by act of 
Congress to apply to the Territories and the District of 
Columbia as well as to the States. 

In the case of a person accused of any crime against a State law, 
the usual rule in all the States is, that a warrant must first be made 
out for his arrest by some proper officer, based on probable evidence. 
These warrants are good only within the jurisdiction of the State. 
But the person to be arrested on the warrant may escape from the 
State, or he may escape from the officer after his arrest and get out 
of the State. In either case there is just one course to pursue un¬ 
der this Constitution. The officer who has the warrant applies to 
the Governor of his own State, who then issues a requisition upon the 
Governor of the State to which the accused person has fled. Upon 
this requisition, the Governor who receives it authorizes some offi¬ 
cer of his own State to arrest the person called for in the requisi¬ 
tion, and hand him over to an officer from the State which demands 
him. In the case of a person convicted of a crime who escapes from 
prison, the course is the same. 

To illustrate, let us suppose that a murder is committed in Illinois, 
and that a person who is supposed to have committed it has gone 
across the line into Wisconsin. A warrant is made out in Illinois 
by some judicial officer, and given to a sheriff or deputy sheriff. 
Application is made to the Governor of Illinois in person, or by mail. 
He issues a requisition on the Governor of Wisconsin which the 
Illinois officer presents to the Governor of Wisconsin. He author¬ 
izes some Wisconsin officer to make the arrest and deliver over 
the person named in the requisition to the Illinois officer, by whom 
ne is taken to the county where the crime was committed, and pufc 
on his trial. 

III. Concurrent jurisdiction of states. — The 
jurisdiction of a State extends to the boundaries of the 



IV: 2, 3.] 


FUGITIVE SLAVES. 


281 


State, except where a lake or river lies in several States. 
In that case they all have concurrent jurisdiction upon 
the lakes or river. That is, a crime committed on the 
lake or river may be tried in the courts of any of the 
States in which it partly lies. Thus, Lake Michigan 
lies partly in Michigan, partly in Wisconsin, partly in 
Illinois and partly in Indiana. A crime committed on 
the waters of Lake Michigan may be tried in the courts 
of Michigan, Wisconsin, Illinois or Indiana, whichever 
is most convenient. All questions are thus avoided 
about the exact boundary line, which would be difficult 
to determine exactly on the water. 

IY. A DISPUTED QUESTION. 

Is a Governor obliged to surrender any person called for by the 
Governor of another State 9 There is no law to compel a Governor 
to do so. And Governors do not always give up persons upon 
the requisition of the Governors of other States. They look into each 
case for themselves, and decide it upon its merits. Perhaps the 
most remarkable case occurred in 1878. Many years before, a 
murder had been committed in Pennsylvania. The supposed mur¬ 
derers, two in number, moved to Illinois, and remained there as 
good citizens till the year 1878, when an attempt was made by the 
authorities of Pennsylvania to arrest and try them, by means of a 
requisition upon the Governor of Illinois. But the Governor of 
Illinois refused to deliver them up. 

As the law now stands, a Governor is not compelled to obey the 
requisition of the Governor of another State. Whether it would 
be constitutional for Congress to pass a law to that effect, is an 
undecided question. 


CLAUSE a 

FUGITIVE SLAVES. 

Mo person held to service or labor in one State, under the laws thereof, es¬ 
caping into another, shall, in consequence of any law or regulation 
therein, he discharged from such service or labor, but shall be delivered 
up on claim of the party to whom such service or labor may be duo. 






232 


RELATIONS OP THE STATES. 


[IV: 2, 8. 




I. This clause obsolete. —The same principle ap¬ 
plies to fugitive slaves as to fugitive criminals. As we 
are one nation, runaway slaves were not to gain their 
freedom by crossing the boundary line of any State. 
The free States were to respect the institution of slav¬ 
ery in the slave States. If a master carried his slaves 
to a free State, they became free; but if a slave ran away 
to a free State, he still remained a slave, and should be 
given up on demand. 

All this is changed by the Civil War, and the aboli¬ 
tion of slavery which it brought about. Under the 
thirteenth amendment, there can be now no slavery in 
any State, and consequently no fugitive slaves. 

II. Persons to whom it applied. — The persons 
included in the phrase, “persons held to service or 
labor,'’ were: 

1. Slaves, who were owned like cattle, and who were 
held to service for life, and their children after them. 1 

2. Apprentices, who are boys bound out for a term of 
years to learn a trade. They are not slaves, but their 
masters have a right to their services during the time 
for which they are bound out. The old system of ap¬ 
prenticeship, however, has almost gone out of use. 

3. Other persons bound out to service for a term ol 
years. It was once common for persons to bind them¬ 
selves out for a term of years, to secure a passage to 
this country. When they arrived, their services for 
that time were sold to any one who would buy them. 
This practice has also passed away. In some States, 
pauper children are still bound out till they come of age. 


1 The student should notice here, as elsewhere in the original Constitu¬ 
tion, the words slave and slavery are carefully avoided. The framers of the 
Constitution, when drawing up a form of government for a free nation, were 
ashamed to confess in the same document the existence of slavery in the 
nation. They hoped it would soon be peacefully abolished. But Providence 
ordered otherwise. 



IV: 3, 1.1 ADMISSION OF NEW STATES. 


233 


This elause would still apply to any persons of the 
second or third classes who ran away from one State to 
another. But as their numbers are very few, and as 
slavery has been abolished, this clause has lost its im¬ 
portance. 


SECTION 3. 

NEW STATES AND TERRITORIES. 

CLAUSE 1. 

ADMISSION OF NEW STATES. 

ktow States maybe admitted by the Congress into this Union; bnt no now 
State shall be formed or erected, within the jurisdiction of any other 
State; nor any State be formed by the junction of two or more States 
or parts of States, without the consent of the legislatures of the States 
concerned as well as of the Congress. 

I. New states may be admitted. — The United 
States of America here announces a new principle of 
national life. Nations before this had not been in the 
habit of admitting their dependencies, whether con¬ 
quered provinces or colonies, to equal political privi¬ 
leges. It was because Great Britain refused the colo¬ 
nies a representation in Parliament, and attempted to 
govern them without their consent, that they rebelled, 
and made themselves into the United States. They 
now provided against repeating the mistake. New 
States may be admitted into the Union. When they 
shall be admitted, or under what conditions, is a matter 
left to the discretion of Congress. But when a State is 
admitted, it is entitled to all the privileges of any other 
State, as guaranteed by this Constitution. 

II. The consent of states is required to 
change their boundaries. — Congress may carve out 



234 


RELATIONS OF THE STATES. 


[IV: 3, 1. 


States as it pleases from the territory outside of any 
State. But it cannot change the boundaries of a State 
without its consent. 

1. No new State can be formed within the limits of an¬ 
other State without its consent. Maine and West Vir¬ 
ginia were thus formed. 

2. No new State can be formed by joining two or more 
States, without the consent of all the States affected. 
No such case has occurred. 

3. No new State can be formed from parts of other 
States, without the consent of the States affected. Ver¬ 
mont was formed by land claimed by both New Hamp¬ 
shire and New York, 

4. It is plainly implied, though not stated directly, 
that a part of one State cannot be taken from it and 
added to another State, without the consent of both the 
States. But disputes in relation to the boundary are 
settled by the Supreme Court (III, 2, 1-2). The con¬ 
sent of States is to be given by their legislatures, which 
represent the sovereign people of the States. 

III. How states are admitted. — The method of 
admitting States is not always the same; but the usual 
method is this: The legislature of a Territory sends a 
memorial to Congress asking to be admitted as a State. 
Congress passes an “enabling act ” giving authority to 
call a convention. This convention frames a constitu¬ 
tion which may or may not be voted by the people. 
Congress then passes an act admitting the new State to 
the Union. 

But Congress has several times refused to pass either 
the enabling act or the act admitting the State, and the 
people have several times voted down a constitution 
proposed by a convention. In either case the Territory 
fails at that time to become a State. 



IV: 3, 1.] ADMISSION OF NEW STATES. 


236 


Congress lias generally required a Territory to have 
population enough to be fairly entitled to one repre¬ 
sentative in Congress, before admitting it as a State. 
No Territory which had so much population ever was 
long kept out of the Union. In some cases, States 
have been admitted directly without passing through 
the condition of Territories. 

IV. Disputed questions. 

1. Can Congress create a State against the wish of its inhabit- 
ants ? Probably not. As a fact. Congress has never admitted a 
State, except upon the request of its inhabitants. 

Nor is it likely that Congress will ever offer the privilege to peo¬ 
ple who do not wish it enough to ask for it; and it seems to be the 
spirit of the Constitution that States shall not be admitted with¬ 
out their own consent, although the letter of the Constitution does 
not demand it. 

2. Can a State be admitted with less population than the ratio of 
representation ? Yes. Congress has lately admitted several States 
whichjiad less population than would regularly be entitled to one 
Representative. In the case of Nevada there was only one-third 
enough population, but there were so few women and children, it 
was claimed it had its fair proportion of voters. The unwritten 
constitution — the fixed political habits of the people — are, how¬ 
ever, opposed to such hasty admission of States. But there is 
nothing in the Constitution to prevent it. And no law of Congress 
on this subject can bind even the same Congress, much less suc¬ 
ceeding Congresses. The whole subject is in the discretion of Con¬ 
gress. 

3. Can a State leave the Union ? In one sense, yes; in another 
sense, no. A State can secede so far as to renounce its privileges 
as a State, but not so far as to rid itself of the rights of the United 
States toward its lerritory and its inhabitants. When a State se¬ 
cedes, it loses its privileges as a State, and stands in the relation of 
a Territory, and can only become a State again in the same way in 
which any other Territory can become a State. 

If it succeeds in its rebellion by force of arms, of course it be¬ 
comes independent, not by any law or clause in the Constitution, 
but by the right of revolution, the right of successful force. But 
if it is defeated in its rebellion, it becomes conquered territory, 


286 


RELATIONS OF THE STATES. 


[IV: 8 , 1 . 


which is at the disposal of the United States, and which can only 
be re-admitted to the Union by Congress on such conditions as Con¬ 
gress may impose. 

This was what was done in the case of the seceded States. (See 
Am. XIY.) The only power which could decide this question was 
Congress (subject to the President's veto). This is a political ques¬ 
tion, not a judicial one, and the Supreme Court will not undertake 
to decide political questions. We need not, therefore, go to the 
Supreme Court for an answer to this question, but to the acts of 
Congress. Congress, over the President’s veto, acted on these 
principles in reconstructing the seceded Southern States, and thus 
established this principle. 

It is true that there was much opposition to this view. It was 
maintained by many that a State could not secede. If this meant 
that a State could not constitutionally secede, it is true, for the 
Constitution has made no proviso for a State's seceding. If it was 
meant that a State could not successfully rebel, and thus in fact 
withdraw from the Union, it was not true, for such a thing is very 
possible. A State can of course rebel, and if it succeeds in its re¬ 
bellion, it is of course out of the Union, although it was unlawful 
for it to thus rebel. But, thirdly, if it is meant that a State can 
rebel (as was meant at that time by those who put in this claim), 
and if successful, enjoy the fruits of that success, but if unsuccess¬ 
ful, be liable to no punishment, but reassume at once all its privi¬ 
leges as a member of the Union, this is a premium upon rebellion 
of States, and a political absurdity of the first magnitude. 

It is absurd to claim that the United States can conquer territory 
from Mexico, and govern it as long as it pleases, and only admit 
States formed from it to the Union at such times and under such 
conditions as it pleases; and at the same time to claim that the 
United States can conquer the rebellious State of South Carolina 
and gain no rights from that conquest. The absurdity is only ex¬ 
ceeded by the preposterous claim made at the beginning of the 
Civil War, that we could not constitutionally coerce a sovereign 
State, as if the rights of self-defense and of conquest were not 
rights inherent in all nations and superior to all Constitutions. 

Y. Table of the admission of states. 

The following table gives the original States, and the States smoe 
admitted to the Union, with the date of admission: 



IV: 3, 1.] ADMISSION OF NEW STATES. 


23T 


ORIGINAL STATES. 


1. 

New Hampshire. 

4. Connecticut. 7. 

Pennsylvania. 

2. 

Massachusetts. 

5. New York. 8. 

Delaware. 

3. 

Rhode Island. 

6. New Jersey. 9. 

Maryland. 

10. 

Virginia, 

readmitted 

Jan. 26, 1870. 

11. 

North Carolina, 

readmitted 

June 25, 1867. 

12. 

South Carolina, 

readmitted 

June 25, 1867. 

13. Georgia, 

readmitted 

NEW STATES. 

, Admitted. 

July 15, 1870. 

Readmitted . 

14. 

Vermont. 

March 4, 1791. 


15. 

Kentucky. 

June 1, 1792. 


16. Tennessee. 

June 1, 1796. 

July 24, 1866. 

17. 

Ohio. 

November 29, 1802. 


18. 

Louisiana. 

April 8, 1812. 

June 25, 1867. 

19. 

Indiana. 

December 11, 1816. 


20. 

Mississippi. 

December 10, 1817. 

Feb. 23, 1870. 

21. 

Illinois. 

December 3, 1818. 


22. 

Alabama. 

December 14, 1819. 

June 25, 1867. 

23. 

Maine. 

March 15, 1820. 


24. 

Missouri. 

August 10, 1821. 


25. 

Arkansas. 

June 15, 1836. 

Jan. 22, 1867. 

26. 

Michigan. 

January 26, 1837. 


27. 

Florida. 

March 3, 1845. 

June 25, 1867. 

28. Texas. 

December 27, 1845. 

March 30, 1870. 

29. 

Iowa. 

December 28, 1846. 


30. 

Wisconsin. 

May 29, 1848. 


31. 

California. 

September 9, 1850. 


32. 

Minnesota. 

May 11, 1858. 


33. 

Oregon. 

February 14, 1859. 


34. 

Kansas. 

January 29, 1861. 


35. 

West Virginia. 

June 30, 1863. 


36. 

Nevada. 

October 31, 1864. 


37. 

Nebraska. 

January 15, 1867. 


38. 

Colorado. 

July 4, 1876. 


39. 

South Dakota. 

November 2, 1889. 


40. 

North Dakota. 

November 2, 1889. 


41. 

Montana. 

November 8, 1889. 


42. 

Washington. 

January 2, 1890. 

t 

43. 

Idaho. 

July 3, 1890. 


44. 

Wyoming. 

July 10, 1890. 








238 


RELATIONS OF THE STATES. 


[IV: 8, 2. 


Vermont was claimed by both New York and New Hampshire. 
The controversy was settled by both giving their consent to the act 
of Congress admitting Vermont as a State. 

Kentucky was a part of Virginia, and was erected a State with 
her consent. 

Maine had been a part of Massachusetts, and was erected into a 
State with her consent. 

Texas had rebelled against Mexico, and had been nine years an in¬ 
dependent nation, and was admitted to theUnion on her own request. 

West Virginia was formed from a part of Virginia during the 
Civil War. That part of the population of Virginia which re¬ 
mained loyal reorganized their State government, and then voted 
to set off West Virginia as a separate State, which was concurred 
in by Congress. 

Kentucky, Tennessee and Missouri, by their legislatures or con¬ 
ventions, voted to secede. In Kentucky the State government 
finally returned to its allegiance. In Tennessee and Missouri there 
were two governments during the war. In each State one govern¬ 
ment was loyal, and was recognized by Congress. Congress was 
therefore precluded by its own previous action from reconstructing 
these States, as it did the other seceded States, where the govern¬ 
ment, as well as the most of the people, had been in rebellion. 

CLAUSE 2. 

THE TERRITORIES. 

Congress shall have power to dispose of and make all needful rules 
and regulations respecting the territory or other property belonging to 
the United States; and nothing in this Constitution shall be so construed 
as to prejudice any claims of the United States, or of any particular 
State. 

I. The power to acquire territory. — The power 
to acquire territory or other property is not expressed 
in this Constitution. It does not need to be so ex¬ 
pressed. This power is an attribute of sovereignty. If 
the United States is a nation, it can, of course, acquire 
and hold territory or other property. 1 

1 When Jefferson signed the treaty to purchase Louisiana, he said that he 
“had stretched the Constitution until it cracked.” He was an advocate of 
a strict construction of the Constitution. But the force of circumstances 
compelled him to purchase Louisiana in spite of his theories, and now no 
one pretends that it was unconstitutional, although not expressly stated in 
the Constitution. 



IV: 3, 2.] 


THE TERRITORIES. 


239 


Before the Constitution was adopted, the United 
States acquired territory from several States by the 
cession of their claims; and since the Constitution was 
adopted, the United States has trebled its territory by 
purchase and by conquest, by discovery and annexation. 

II. The power to dispose op territory. — The 
power to dispose of territory or property is also an at¬ 
tribute of sovereignty. It would exist if it was not ex¬ 
pressed in this clause. But this clause puts the power 
in the hands of Congress. Thus, Alaska was bought of 
Russia, under the general power of any nation to ac¬ 
quire and dispose of territory. It was therefore done 
by treaty, not by act of Congress. The President with 
the consent of two-thirds of the Senate bought Alaska. 
But if we should grow tried of our bargain and wish to 
sell Alaska again, an act of Congress would be needed 
to authorize the sale, under this clause. Otherwise it 
could be sold as it was bought, by the treaty-making 
power. So also ships of war, arms, clothing, etc., of 
which we had more than was needed at the close of the 
Civil War, were sold under authority of an act of Con¬ 
gress. No territory of the United States has ever been 
sold to another nation. But Congress ceded that part 
of the District of Columbia south of the Potomac 
river, back to Virginia, under this clause. 

III. The power to govern territory. — The power 
to govern the territory it holds, is also an attribute of 
a nation’s sovereignty. Every nation has this right, 
subject to the limitation of treaties and constitutions. 
But this clause gives the power to govern the territory 
of the United States to Congress rather than to any 
other branch of the government. 

Congress has generally acted in the relation of a 
State legislature as well as of the National legislature 


240 


RELATIONS OF THE STATES. 


'IV: 3, A. 


to the District of Columbia, and to the unorganized ter¬ 
ritory of the United States, and has made all their laws. 
But in all the organized territories Congress has au¬ 
thorized the people to govern themselves, subject to the 
government of the United States. 

Territorial legislatures are elected by the people; but 
the governor and judges are appointed by the President 
with the consent of the Senate. In such case, Con¬ 
gress really governs indirectly. It delegates the actual 
work of governing to the territorial government, but it 
reserves the right to reverse their action, or even abolish 
their government, at any time. These territorial gov 
ernments are very much like the colonial governments 
before the revolution. The territories are really col¬ 
onies of the United States, and are governed as such. 

IV. No PREJUDICE TO STATE OR UNITED STATES 
claims. — It is provided that nothing in this Constitu¬ 
tion shall be so construed as to prejudice any claims of 
the United States or of any particular State. This was 
inserted to satisfy some States whose claims to territory 
had not yet been settled. The conflicting claims of the 
States to territory west of the Alleghanies had nearly 
all been settled just before the Constitution was framed. 
But some of these claims still remained at that time un¬ 
settled. All these claims were finally settled peaceably. 

V. Claims and cessions of territory by the 

STATES. 

The original settlements of the English colonies were made along 
the Atlantic coast. The English crown claimed this territory by 
virtue of the discoveries of the Cabots, and other later explorers. 
The crown granted these lands to the companies and proprietors 
that settled them, with very little regard for geographical accuracy. 
Massachusetts, Connecticut, New York, Virginia, the two Caro- 
linas, and Georgia, all had grants of the land within their present 
boundaries, but stretching westward to the “South Sea,” that is 


IV: 8, 2.] 


THE TERRITORIES. 


241 


the Pacific Ocean. The other six colonies had grants not quite 
so vague and extensive, but indefinite enough to give rise to many 
disputes about boundaries. If the student will refer to a map, he 
will see that the claims of Massachusetts overlapped the claims of 
New York; that the claims of Connecticut overlapped those of New 
York and Pennsylvania, and that the claims of the Carolinas and of 
Georgia were likely to conflict. Besides these, New York and New 
Hampshire each had a claim on what is now Vermont, by virtue of 
English charters, and almost every colony had an unsettled ques¬ 
tion of boundary with its neighbor. 

When the Revolution made the colonies independent States, no 
power was left to settle these conflicting claims. To add to the con¬ 
fusion, Virginia, in 1777, sent an expedition under George Rogers 
Clarke, which captured the country between the Ohio, the Lakes, 
and the Mississippi, from the English, and Virginia claimed this 
territory by right of conquest. It was certain that we should not have 
got this territory at the close of the Revolution, if Virginia had not 
conquered it, so that the claim of Virginia had a show of reason. 

These claims were to two things — to jurisdiction and to the right 
of eminent domain over the soil; that is, each State claimed cer¬ 
tain territory to govern, and also claimed all the land in it not held 
by private persons, with power to extinguish the Indian titles, and 
to give away or sell the land. On the strength of these claims, the 
States had sold land or given it away to revolutionary soldiers. 
But the conflict of State claims produced a conflict of titles to land. 
Thus, Connecticut had sold lands in the Wyoming Valley, in north¬ 
eastern Pennsylvania, to settlers. But Pennsylvania claimed that 
territory, and also sold the same land. Thus there were two sets 
of proprietors of the land, the actual settlers from Connecticut, and 
the speculators who had bought of Pennsylvania. The result was 
that the two States almost went to war. Again, New Hampshire 
sold lands in Vermont to her own citizens, who settled what wa3 
called “ the New Hampshire Grants.” New York claimed the ter¬ 
ritory and tried to enforce the claim. The “ Green Mountain 
Boys” organised and armed to resist the claim, and if the Revolu¬ 
tion had not broken out, there would have been a little war between 
the colony of New York and the settlers of Vermont. It is not to 
be wondered at that each State claimed all it could. But it was 
necessary to the peace and safety of the Union that these conflict¬ 
ing claims should be settled as soon as possible. 


F 




242 


RELATIONS OF THE STATES. 


L1V: 3, 2. 

During the war, the State legislatures and Congress passed vari¬ 
ous resolutions. At last New York led the way in giving up her 
elaims to the west for the general good in 1780, Virginia followed 
in 1784, Massachusetts in 1785, and Connecticut in 1786. All this 
was done before the Constitution was adopted. As soon as all the 
conflicting claims to the territory between the Ohio, the lakes and 
the Mississippi had been ceded to the United States, Congress passed 
the celebrated ordinance of 1787, for the government of that terri¬ 
tory, which has been the model for all territorial governments since. 
The conflicting claims of Massachusetts and Connecticut with New 
York and Pennsylvania, were adjusted by arbitration. 

New Hampshire and New York both gave up their claim to Ver¬ 
mont, and it was admitted to the Union in 1791. Virginia gave 
its consent to Kentucky being set off from her territory into a sepa¬ 
rate State in 1792. Other cessions of western territory were made 
by South Carolina in 1790, and by Georgia in 1802. Thus all these 
conflicting claims were settled by peaceable means. 

The United States in all these cases gained the entire jurisdiction 
of the territories ceded, but the title to the land was not all given 
to the United States. Most of the States kept a part of the land 
and granted it to their Revolutionary soldiers. So now when the 
United States erects a State out of its territory, it gives up such part 
of its jurisdiction, as a State is entitled to under this Constitution, 
but it keeps its lands, unless it specially gives a part of them to the 
State. 

YI. Territory sluce acquired. 

The original limits of the United States were between the Atlan¬ 
tic, the Mississippi, and the boundary of Canada. But on the south, 
the United States did not touch the Gulf of Mexico. Spain held 
what is now Florida and a strip extending west to the Mississippi, 
and all west of that river. 

In 1803, we purchased of France all of 'what was then called 
Louisiana. France had just acquired it from Spain by a secret 
treaty. Louisiana then included “the island and city of New Or¬ 
leans,” and all the Valley of the Mississippi which lies west of that 
river, with some vague claim to the country west of the Rocky 
Mountains. 

The coast of Oregon had been discovered by two trading ships 
from Boston in 1788, and the Columbia (or Oregon) river, in 1792, 
by one of the same ships. In 1804, an exploring expedition under 




IV: 3, 2.] 


THE TERRITTORIES. 


24$ 


Lewi* and Clark was sent across the country, which explored the val¬ 
leys of the Missouri and of the Columbia. This was followed by 
settlement in 1811. We thus acquired Oregon by discovery, if we 
did not already have a title to it by the purchase of Louisiana. We 
claimed as far north as the latitude of 54° 40', and the English 
claimed all down to California. We finally compromised on the 
present boundary. 

In 1819 we purchased Florida of Spain. Texas revolted from 
Mexico in 1835, and declared its independence in 1836. It was in*' 
dependent for nine years, and in 1845 was annexed to the United 
States, at its own request. In this case, Texas retained the title to 
her soil, and was admitted at once as a State on the same footing 
as the other States. 

At the close of the war with Mexico, we gained by a mixture of 
conquest and purchase what was then called New Mexico and Cali¬ 
fornia, including all the territory westward to the Pacific and south 
of Oregon. The southern part of Arizona was added to this by 
purchase from Mexico in 1853, and lastly, in 1867, we purchased 
Alaska of Russia. 

It should be remembered that in acquiring all this territory wa 
acquired rights of sovereignty only. The title to the land has been 
purchased of the various Indian tribes, and a large part of the land 
thus acquired has been sold or given away to encourage settlement. 
And as fast as th6 territory has been settled sufficiently, it has been 
made first into organized Territories and then into States. It is 
not the* policy of the United States to govern the territory it ac¬ 
quires, as dependent provinces; but to erect it into free States, as 
fast as it can wisely be done. It is the glory of the States of the 
Union that they are not jealous of admitting other States to their 
sisterhood. Already the center of population and of power has 
passed to the westward of the Atlantic States. The new States 
which have been erected out of the territory of the United States 
already surpass the original thirteen States in number, in size, in 
population and in wealth. 



*44 


RELATIONS OF THE STATES. 


[IV: 4. 


SECTION 4. 

FEDERAL PROTECTION OF STATES. 

The United States shall guaranty to every State in this Union a republleaa 
form of government, and shall protect each of them against invasion, 
and on application of tbe legislature, or of the executive (when tha 

legislature cannot be convened), against domestic violence. 

\ 

I. Guaranty of a republican form of govern¬ 
ment. — This section provides that the'United States 
shall guaranty to every State in this Union a repub¬ 
lican form of government. This means that no State 
government shall be a monarchy or an aristocracy. 
States have had very various details of government in 
their Constitution, and no attempt has ever been made 
to interfere with those, on the ground that they are 
not republican. But should a tyrant ever usurp power 
in a State, or a few men, not the lawful choice of the 
people, ever seize on the government of a State, then 
it would be the duty of the United States to step in and 
overthrow the unrepublican government and call on the 
people to organize a more suitable one. Congress 
alone could do this, and the President could only act as 
authorized and directed by Congress in such a case. 
Nor could the Supreme Court have any jurisdiction in 
such a case. The question would be purely a political 
one, and therefore wholly beyond their jurisdiction. 
Congress alone can decide when a State no longer has a 
republican form of government, and how such a gov¬ 
ernment shall be guaranteed to it. 

Fortunately no such case has ever arisen. But the 
whole history of our States shows a constant tend¬ 
ency toward a more republican rather than a less re¬ 
publican form of government. 


IV: 4.J FEDERAL PROTECTION OF STATES. 


245 


II. Protection against invasion. — The United 
States is required to protect every State in the Union 
against invasion. Even if this clause did not expressly 
state this, it would be the duty of the government to 
protect the States against invasion. It is one of the 
greatest things for which governments are organized, 
to protect against foreign invasion; and if nothing were 
said about it in the Constitution, it would still be the 
duty of government. 

Besides, the preamble of the Constitution gives, 
among the objects of this Constitution, M to provide for 
the common defense,” and this would include defense 
against invasion. 

What department of the government is entrusted 
with this power? The executive. The President gen¬ 
erally, by his orders to the army and navy, defends the 
whole United States against invasion. But in sudden 
danger, the officer of the army or navy who is in com¬ 
mand at the point of danger, does all he can, until he 
hears from the President. 

III. Protection against domestic violence. — 
The Constitution also guarantees every State in the 
Union protection against domestic violence. But for fear 
that the Federal government might make riots or local 
insurrections a pretext to meddle too much with State 
affairs, it is provided that this protection shall only be 
given on the application of the proper State authority. 
This is the State legislature, or the governor, if the 
legislature is not in session or cannot be convened. 

The President can only interfere to put down an in¬ 
surrection in a State when he is properly summoned, 
and it is fair to infer that his interference can only last 
until the domestic violence is suppressed, and that he 
must then cease his protection. 


246 


RELATIONS OF THE STATES. 


[IV: 4. 


Several eases have arisen, of domestic violence in a 
State, and the federal power has been found most use¬ 
ful to protect against riot and insurrection. 

IV. Rival state governments. — But the most 
delicate case is that which has several times occurred, 
when there are two rival governments, each claiming to 
be the lawful one, and one or both appealing to the 
President for help against the other. v In such cases, 
who shall decide which is the lawful government? This 
case differs decidedly from the case of a riot or insurrec¬ 
tion, where there is no pretense of legality. When 
two rival governments exist in a State, and one calls for 
aid against the other, the President must know which 
is the lawful government before he can help either. 
His help will be the practical decision as to which shall 
be the government of the State, and will decide the 
question of fact, if not of law. 

The answer is that in such a case, if Congress has 
recognized either government, the President is bound 
to follow that decision. But if not, then the President 
must decide to the best of his ability. But Congress 
may at any time reverse that decision and direct a 
^ange of policy. 



AMENDMENTS. 


4 


AMENDMENTS. 


247 


ARTICLE V. 


AMENDMENTS. 

* Wt* world advances, and in time outgrows 
The laws that In our father’s day were best.’* 

— Lowxxx. 


ANALYSIS OP THIS ARTICLE. 


r 1. By two-thirds of each House of Congress. 
Or 


L Pboposbd .... * 


A By a Convention. 


V 


(a.) Applied for by 
legislatures of 
two-thirds of 
the States. 

(b.) Called by Ooa- 
. gross. 


{ 1. By legislatures of three-fourths of the 
States. 

Or 

8. By Conventions in three-fourths of the 
States. 


III. Loutatioxs.. 


r 1. No amendment before 1803 to abolish the 
slave trade. 

2. No amendment before 1809 to change the 
direct taxes. 

8. No amendment to change equality of States 
in Senate. 

V. 


The Congress, whenever two-thirds of both Houses shall deem it necessary, 
shall propose amendments to this Constitution, or, on the application of 
the legislatures of two-thirds of the several States, shall call a conven¬ 
tion for proposing amendments, which, in either case, shall be valid to aH 
Intents and purposes, as part of this Constiiution, when ratified by the 
legislatures of three-fourths of the several States, or by conventions in 
three-fourths thereof, as the one or tho other mode of ratification may 
be proposed by the Congress; provided that no amendment which may 










248 


AMENDMENTS. 


[▼. 


b« made prior to the year one thousand eight hundred and eight, shall 
in any manner affect the first and fourth clauses in the ninth section of 
the first article; and that no State, without its consent, shall be deprived 
of its equal suffrage in the Senate. 

I. The method of making amendments. — Amend¬ 
ments to the Constitution may be made in two ways: 

1. Congress may by a two-thirds vote of each House 
propose amendments. If these amendments are ratified 
by the legislatures (or by conventions) of three-fourths 
of the States, they shall be valid; otherwise not. 

2. The legislatures of two-thirds of the States may 
ask for a constitutional convention. 

In that case Congress must call such a convention. 
This convention may propose amendments to the 
Constitution. 

If these amendments are ratified by the legislatures 
(or by conventions) of three-fourths of the States, they 
shall be valid; otherwise not. 

This method of proposing amendments is somewhat 
tedious and complicated. But it is nearly the same 
process by which this Constitution was adopted in the 
first place. The reason which makes it difficult to 
amend the Constitution is well stated in the Declaration 
of Independence: “ Prudence, indeed, will dictate that 
governments long established should not be changed for 
light and transient causes; and accordingly all experi¬ 
ence hath shown that mankind are more disposed to 
suffer, while evils are sufferable, than to right them¬ 
selves by abolishing the forms to which they are accus¬ 
tomed.” 

II. Restrictions on the power of amendments.— 
These are three: 

1. In the interest of the slave-holding States, it was 
provided that Article I, section 9, clause 1, should not 


V.] 


AMENDMENTS. 


249 


be amended before 1808. This clause allows the im¬ 
portation of slaves until that time. 

2. It was also provided that Article I, section 9, 
clause 4, should not be amended before 1808. This 
clause provides that direct taxes shall be assessed on the 
States in proportion to the representative population, 
thus favoring the slave-holding States again. 

3. In the interest of the smaller States, it was pro¬ 
vided that the equal representation of States in the 
Senate should never be changed. Under this restric¬ 
tion, the number of Senators from each State may be 
changed to one, or three, or any other number. But 
the number of Senators must be the same from each 
State. This is now the only provision of the Constitu¬ 
tion which cannot be amended or repealed. 

III. Disputed questions. 

1. Is the approval of the President necessary to a proposed 
amendment ? Both the Supreme Court and Congress have decided 
that it is not necessary. 

2. Can a State withdraw its ratification of an amendment ? Con¬ 
gress has decided that it cannot, and that if a State has once rati¬ 
fied an amendment, it cannot reverse that action. But if a State 
has rejected an amendment, it may afterwards adopt it, and have 
its vote counted. 

3. When is an amendment, once proposed, dead ? This question 
has never been decided by authority; but probably a proposed amend¬ 
ment never dies. We may suppose that at any time in the future, 
new States, or those which have rejected it, may ratify it, and 
whenever three-fourths of all the States have ratified it, it becomes 
a part of the Constitution. 

4. When States are in rebellion, must a proposed amendment be 
ratified by three-fourths of all the States, or by three-fourths of the 
loyal States ? By three-fourths of the loyal States. It has been de¬ 
cided by Congress that rebel States lose their rights as States, until 
restored to the Union by act of Congress. As rebel States have lost 
their rights as States, they need not be counted in making up the 
number of States, three-fourths of which must ratify a proposed 


250 


AMENDMENTS. 


[V, 


amendment before it becomes a part of the Constitution. It is true 
that Congress, while reconstructing the seceded States, required 
them to ratify the recent amendments. But this was not done for 
the sake of securing their votes to make the amendment valid, but 
as a guarantee that the seceded States had accepted the results of 
the war in good faith. 

5. When does an amendment become valid ? When it is ratified 
by the requisite number of States. But it is the duty of the Secre¬ 
tary of State, as soon as he receives official notice from the requisite 
number of States, to publish the amendment, with his certificate 
that it is ratified. 

IV. List of amendments proposed. 

The following amendments have been proposed, the most of 
which have been adopted: 

1. The first ten amendments were proposed in 1789, and ratified 
in 1791. These were designed as a Bill of Rights. 

2. Two other amendments were proposed in 1789, but were not 
adopted. One of these was to regulate the number of Representa¬ 
tives. The other was to prevent members of Congress voting am 
increase of salary to themselves. 

3. The Eleventh Amendment was proposed in 1796, and ratified 
in 1798. 

4. The Twelfth Amendment was proposed in 1803, and ratified 

in 1804. This was proposed in consequence of the contested elec¬ 
tion in 1801. — 

5. An amendment to prohibit citizens of the United States re¬ 
ceiving titles of nobility, presents or offices from foreign powers, 
was proposed in 1811, but not ratified. 

6. An amendment to make slavery perpetual, in hopes of avert¬ 
ing the Civil War, was proposed in 1861, but was not ratified. 

7. The Thirteenth Amendment was proposed in 1865, and rati¬ 
fied before the close of the same year. 

8. The Fourteenth Amendment was proposed in 1868, and rati¬ 
fied in 1868. 

9. The Fifteenth Amendment was proposed in 1869, and ratified 
in 1870. 

Noth.— Those amendments which were ratified will be found in full la 
their proper place. Those which were not ratified read as follows: 

1. After the first enumeration required by the first article of the Constitu¬ 
tion, there shall be one Representative for every thirty thousand, until the 



V.] 


AMENDMENTS. 


251 


number shall amount to one hundred, after which the proportion shall be 
so regulated by Congress that there shall be not less than one hundred Rep¬ 
resentatives, nor less than one Representative for every forty thousand 
persons, until the number of Representatives shall amount to two hundred; 
after which the proportion shall be so regulated by Congress that there shall 
not be less than two hundred Representatives, nor more than one Repro¬ 
sen tative for every fifty thousand persons. (Proposed in 1789.) 

2. No law varying the compensation for the services of the Senators and 
Representatives shall take effect until an election of Representatives shall 
have intervened. (Proposed in 1789.) 

3. If any citizen of the United States shall accept, claim, receive or retain 
any title of nobility or honor, or shall, without the consent of Congress, 
accept and retain any present, pension, office, or emolument of any kind 
whatever, from any emperor, king, prince, or foreign power, such person 
shall cease to be a citizen of the United States, and shall be incapable of 
holding any office of trust or profit under them or either of them. (Proposed 
in 1811.) 

4. No amendment shall be made to the Constitution which will authorise 
or give to Congress the power to abolish or interfere, within any State, with 
the domestic institutions thereof, including that of persons held to labor or 
■errioe by the laws of said State. (Proposed in 1861.) 






SUPREMACY OF THIS CONSTITUTION, 


SUPREMACY OF THIS CONSTITUTION, [VL 




ARTICLE VI. 


SUPREMACY OF THIS CONSTITUTION. 


ANALYSIS OF THIS ARTICLE. 


1. Consists 

<*r . 


f I. All debts and engagements still as valid as under the 

confederation. VI, I 

(a.) This Constitution. VI, t 
(b.) Laws of U. S. made 
in pursuance 

thereof. VI, 8 

(c.) Treaties made 
under the author¬ 
ity of the U. S... VI, I 


(a.) The judges in every 
State, in spite of 
State Constitu¬ 
tions or laws .... VR8 
(b.) All executive offi¬ 
cers of the State, VI. I 
(C.) Members of the 
State Legisl ft- 

tures . . VI, 8 

(d.) The President of 

the U. S.VI, 1,8 

(e.) Senators and Rep¬ 
resentatives .., ... VR8 
(f.) All U. S. executive 

officers.VI, 8,8 

(g.) All U. S. judges .. VI, 8,8 


II. The Supreme 
Law or tub * 


Laxs 


8 . It bind¬ 
ing on. 


8. 1$ ex¬ 
pressed 
oy . 


(a.) An oath of office, 

II, 1, 8, and VI, 8 
(b.) Liability to im¬ 
peachment . II, 4 


IIL No religious test for office shall he required. VI, 8 





















VI: a.] THE SUPREME LAW OF THE LA20X 


858 


CLAUSE 1. 

DEBTS AND ENGAGEMENTS. 

All debts contracted and engagements entered into before the adoption off 
this Constitution, shall be as valid against the United States under tint* 
Constitution as under the confederation. 

All debts and engagements still valid. —When 
a nation changes its form of government, it does not 
lose its identity and become another nation. It re¬ 
mains the same nation, with a different government. 
A change of government does not release a nation from 
the debts and engagements it has entered into. In 
such a case, the law of nations requires the new gov¬ 
ernment to assume the debts and fulfill the engagements 
of the old. 

This would therefore have been the duty of the 
United States whether this clause had been inserted or 
not. 

But it was inserted to show the world that we in¬ 
tended to pay our debts and to live up to our treaties. 
Of course all debts and engagements due to the United 
States are also equally binding. 

CLAUSE 2. 

THE SUPREME LAW OF THE LAND. 

This Constitution, and the laws of the United States which shall be made 
in pursuance thereof, and all treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme law of 
the land; and the judges in every State shall be bound thereby, anything 

in the Constitution or laws of any State to the contrary notwithstanding, 

• % 

I. United States law the supreme law. — As 
we are one nation, and not a confederacy of nations, 
it is necessary that the national laws should be supreme 
over State laws. If not, we should have thirty-eight 




254 


SUPREMACY OF THIS CONSTITUTION. [VI: 2 


supreme laws instead of one, and the laws of the United 
States would be obeyed only as far as it suited each 
State to obey them. 

South Carolina, in 1832, refused to obey certain laws 
of the United States. This was called nullification, 
because South Carolina wished to nullify those laws, 
that is, to treat them as null and void. This attempt 
was speedily put down by President Jackson. 

II. What is United States law? — United States 
law consists of three things: 

1. The Constitution of the United States. This may be amended, 
but while in force is always the highest law for the United States 
and every State. 

2. All laws of the United States made in pursuance of the Con¬ 
stitution. This includes all laws of the United States which are 
not unconstitutional. Only the courts can decide whether a law is 
constitutional or not, and until so decided as unconstitutional., it 
must be obeyed as law. 

8. All treaties made under the authority of the United States, 
that is, by the President, with the consent of two-thirds of the 
Senate. When a treaty is made, it repeals all laws that are in con¬ 
flict with it, as long as the treaty lasts. When the treaty expires, 
these laws come into force again. 

These taken together constitute the supreme law of the land. 
They cease to be the supreme law in these cases: 

1. When the Constitution is amended, the part abolished by the 
amendment ceases to be law. 

2. If a revolution should occur, which should destroy our govern¬ 
ment, the Constitution and law would practically cease to be law. 

3. When a statute is repealed by Congress it ceases to be law. 

4. When a statute is decided by the courts to be unconstitutional, 
it ceases to be law. If the decision of a lower court is thought 
to be wrong, the case may be carried up to the Supreme Court, 
whose decision is final. 

5. When a law conflicts with a treaty made after the law waa 
was made, the law ceases to be law. 

6. When a treaty is broken by mutual consent, is repudiated 
successfully by either party, or expires by its own limitation, it 
ceases to be law. 



VI: 3.] 


OATH OF OFFICE. 


255 


III. StAUE LAW AS CONTROLLED BY UNITED STATES 
law. — The law of each State consists of its Constitu¬ 
tion, and its laws made in pursuance thereof. If this 
law is in conflict with United States law, it is null and 
void. The States cannot nullify United States law, but 
the United States can nullify State law. But this can 
only be done within the limits fixed by the Constitu¬ 
tion of the United States. 

IV. State judges must decide accordingly.— 
The Constitution makes every judge of a State court 
bound to follow United States law in preference to 
State law. When they come in conflict the State law 
must yield. 


CLAUSE 8. 

OATH OF OFFICE. 

The Senators and Representatives before mentioned, and the members of 
the several State legislatures, and all executive and judicial officers, both 
of the United States and of the several States, shall be bound by oath or 
affirmation to support this Constitution; but no religious test shall ever 
be required as a qualification to any office or public trust under the 
United States. 

I. Oath to support the constitution. — An oath 
to support the Constitution of the United States is 
required of all departments of the State and National 
governments. The persons required to take this oath 
are: 

1. All Senators and Representatives in Congress. 

2. All officers of the United States, executive and 
judicial. This includes military and naval officers. 

3. All members of every State legislature in each 
branch. 

4. All State officers executive and judicial. This in¬ 
cludes all county, town, village and city officers. 


256 SUPREMACY OF THIS CONSTITUTION. [VI: 8. 


This oath of office must he taken in every case before 
entering upon the duties of the office. 

The form of the oath in the United States is pre¬ 
scribed by Congress, except that of the President, which 
is prescribed by the Constitution (II, 2, 7). 

The form of the oath in each State is prescribed by 
the States. All the States require also of their officers 
and legislators an oath to support the State Consti¬ 
tution. 

II. No religious test for office. — In England 
at the time this Constitution was adopted, no one could 
hold office who could not take a test oath, which ex¬ 
cluded all who were not members of the Church of 
England. A religious test was at that time required in 
many States of the Union, and still is in some. 

This Constitution was in advance of the age in abol¬ 
ishing all religious tests for office. This is now gen¬ 
erally acknowledged to be wise. We do not now ask of 
any person elected or appointed to any position, 44 What 
is your belief?” or 44 To what religious body do you 
belong?” There is no legal hindrance to a person of 
any religion, or of no religion, holding office under the 
United Stains. 


VLL] RATIFICATION OF THE CONSTITUTION. 2$7 


ARTICLE VII. 


RATIFICATION OF THE CONSTITUTION. 

Th« ratification of the conventions of nine States shall be sufficient for th« 
establishment of this Constitution between the State* so ratifying th* 
same. 

1. The manner of ratification. — 1. The Consti¬ 
tution was to be submitted, not to the legislatures of 
the States, but to conventions elected for that purpose 
by the people of each State. When Congress called 
tins constitutional convention which prepared this Con¬ 
stitution, it expressly provided that the work of the 
convention should be submitted to Congress and to the 
State legislatures for approval by them. But the con¬ 
vention disregarded these instructions, and submitted 
their work to popular conventions in each State. This, 
however, was done in due form, by submitting the Con¬ 
stitution to Congress with the request that it be sub¬ 
mitted to conventions called by the legislatures in each 
State, but elected by the people; and Congress did so 
submit it. The legislature of Ithode Island refused to 
call such a convention for several years, but did so in 
1790. Ithode Island had constantly opposed the Con¬ 
stitution from the first, and had refused to send delegates 
to the convention which framed this Constitution. 

2. Nine States were required to ratify the Constitu¬ 
tion. This was two-thirds of the thirteen States. The 
Articles of Confederation required the consent of all 
the States to make any change valid. But if a unani¬ 
mous vote had been required to adopt this Constitution 

Q 




258 RATIFICATION OF THE CONSTITUTION. [VIL 


in place of the Articles of Confederation, that rote 
could never have been secured. Rhode Island and 
North Carolina would have stood out, and thus defeated 
the Constitution. The framers of the Constitution 
knew this well, and therefore made this Constitution 
go into effect when a two-thirds majority should be 
secured. But in that case the Constitution was to be 
established only between the States ratifying it. 


II. The history of the ratification. — The Con¬ 
stitution was signed and forwarded to Congress Septem¬ 
ber 17, 1787. Congress voted unanimously September 
28 to send the Constitution to the several State legisla¬ 
tures, to be by them submitted to “ conventions of dele¬ 
gates chosen in each State by the people thereof.” It 
was ratified by nine States in rapid succession, beginning 
with Delaware on December 7. As soon as the ninth 
State ratified the Constitution, Congress proceeded to 
make arrangements for putting the new government 
into operation. Elections were held for Presidential 
electors, and for Senators and Representatives, and 
March 4, 1789, was set as the day on which the new gov¬ 
ernment should be organized and New York as the place. 
Meanwhile two more States had ratified the Constitu¬ 
tion, so that only North Carolina and Rhode Island still 
stood out. 1 The government did not actually go into 
operation on March 4, owing to the difficulties of travel¬ 
ing in those days. But Congress met and waited until 
April 1 for a quorum. April 6, the electoral votes for 
President and Vice President were counted by a Presi- 


1 The Constitution was ratified by the States as follows: 


By Delaware, Dec. 7,1787. 

By Pennsylvania, Dec. 12, 1787. 

By New Jersey, Dec. 18, 1787. 

By Georgia, Jan. 2, 1788. 

By Connecticut, Jan. 9, 1788. 

By Massachusetts, Feb. 6, 1788. 

By Maryland, April 28,1788. 


By South Carolina, May 23, 1788. 
By New Hampshire, June 21, 1788. 
By Virginia, June 28, 1788. 

By New York, July 26, 1788. 

By North Carolina, Nov. 21, 1789. 
By Rhode Island, May 29, 1790. 



VI1.J RATIFICATION OF THE CONSTITUTION. 259 


dent of the Senate (John Langdon, of New Hamp¬ 
shire), who was elected for that purpose by the Senate* 
John Adams entered on his duties as Vice President 
April 21, and George Washington as President April 30. 
III. Disputed question's. 

1. As the Articles of Confederation required the consent of dll 
the States to any amendment to them , by what right was this Consti¬ 
tution adopted and carried into effect against the wish of two of 
them ? By the right of revolution; a peaceable revolution, it is 
true, but none the less a revolution. It is to the honor of the 
American people that they were able to accomplish such a revolu¬ 
tion, and establish a new form of government by peaceful discus¬ 
sion, without the use of force. Such a thing has rarely been done 
in the history of the world. 

2. What would have been done if North Carolina and Rhode 
Island had stood out, and refused to ratify the Constitution ? They 
would have been compelled to ratify it. The other States would 
never have allowed them to exist as independent nations within the 
limits of the United States. As it was, Congress passed an act 
laying a heavy tonnage duty on foreign vessels, but suspended it 
temporarily for Rhode Island and North Carolina vessels. North 
Carolina yielded and ratified the Constitution. A year later the 
•Senate passed a bill prohibiting all commerce with Rhode Island, 
and demanding of her a sum of money as her proportion of the 
expenses of the Revolutionary war. These were steps which could 
mean nothing but war; and Rhode Island so understood them. 
Rather than risk a war alone against the other twelve States, Rhode 
Island hastened to ratify the Constitution before the bill could pass 
the House of Representatives. Had Rhode Island not yielded in 
time, there can be no doubt that armed force would have been used 
to compel her. 

3. By what right could the United States have compelled reluc¬ 
tant States to assent to the Constitution ? By the right of self- 
preservation; the same right by which, at a later time, the United 
States coerced rebel States. The United States is a nation, and as 
a nation it has the inherent right to do whatever is necessary for 
self -preservation. This right is not given by constitutions, and is 
superior to all constitutions. It is the inalienable right of a nation; 
and a nation which cannot or will not hold its several parts together 
and compel their obedience to the general good of the whole, does 
not deserve to be called a nation. 


BILL OF RIGHTS. 


[Arndt*. 


\ . i * 

» , 

L 


AMENDMENTS I-X. 


BILL OF RIGHTS. 


“We hold these troths to be self evident: that all men are created equal j 
that they are endowed by their Creator with certain unalienable rights; 
that among these are life, liberty, and the pursuit of happiness- that to 
secure these, governments are instituted among men, deriving their just 
powers from the consent of the governed; that whenever any form of gov¬ 
ernment becomes destructive of these ends, it is the right of the people to 
alter or to abolish it, and to institute a new government, laving its founda¬ 
tion on such principles, and organizing its powers in such form, as to them 
shall seem most likely to effect their safety and happiness.” — Declaration 
Of Independence. 


ANALYSIS OF THIS BILL OF RIGHTS. 

(And of other personal rights guaranteed in the Constitution.) 


03 

3 


N 

O 




8Q 


L Pbihbok o v 

THOUGHT .... 


II. Freedom from 
Militaet 

OPPRESSION,. 


IIL Freedom prom 

Ex KOOTITB 
OPPRESSION.. 


V. 


< 


V 


r 


< 


V. 


(a.) No establish¬ 
ment of re¬ 
ligion. Am. 1 

1 .B.iigiou, (b - )No proMM - 

Frcedom 110,1 of Ie - 

ligion. Am. I 

(c.) No religious 
test for of¬ 
fice . VI, t 

(a.) Freedom of 

2. Freedom of speech. Am. X 

expression. (ft.) Freedom of 

. the press.. Am. X 

' (a.) Right of aa- 

3. Freedom of j sembly. Am. 1 

political (b.) Right of pe- 
agitalion*. tition. Am. I 


1. Freedom to organize militia. Am. IX 

2. Freedom from forcible quartering 

of soldiers. Am. Ill 

1. No unreasonable searches and 

seizures. Am. I\ 

2. No person deprived of life,liberty 

or property, without due pro¬ 
cess of law .... .. Ant. ^ 

2. No private property taken for pub¬ 
lic use without just compen¬ 
sation .. Am. y 

4. Writ of habeas corpus not sua- 

pended, except in war. 1,1,1 


























BILL Of RlGHi*. 


Hindis.] 


BILL OF BIGHTS. 


861 


j 


IT. Fmudom fbok 

JUDICIAL OP- 4 

nxasios .... 


1. B sf o r 4 
trial .. 


% On trial. 


ft. In civil 
suite .. 


(a.) Indictment of 
grand jury re¬ 
quired, except 
under military 

law. Am. Y 

(b.) If acquitted once 
cannot be tried 

again. Am. V 

(c.) Right to a speedy 

trial. Am. VI 

(d.) Excessive bail 

not required. ..Am. VIII 
(e.) To be informed 
of the charges 
against him... Am. VI 

(a.) Trial public. Am. VI 

(b.) By impartial 
Jury of the dis¬ 
trict..Ill, 2, a, and Am.VI 
(c.) Not to be com¬ 
pelled to be a 
witness against 

himself.. Am. V 

(d.) To be confronted 
with witnesses 
against him... Am. VI 
(e.) To subpoena wit¬ 
nesses for him. Am. T1 
(f.) To haye counsel Am. II 
(g.) No excessive 
fines, or cruel 
or unusual pun¬ 
ishments . Am. HI 

(h.) Definition of 

treason limited HI, 8.1 
(i.)] Stricter evidence 
required to con¬ 
vict of treason. Ill, ft, 1 
(J.) Punishment of 
treason less¬ 
ened . Ill, I, t 

(a.) Trial by Jury 
where twenty 
dollars is in 
controversy.... Am. VU 
(b.) Verdict of Jury 
settles the ques¬ 
tion of fact .... Asa. Til 
















262 BILL OF RIGHTS. [Arndts* 

1. Bills of attainder forbidden. I, 9, • 

2. Ex post facto laws forbidden.. I, 9, 8 

8. No titled aristocracy created_ I, 9, 7 

4. No slavery.Am. XIII 

5. Bight to vote not denied on' ao- 

count of color. . Am. XV 

1. No bill of attainder . ... 1,10,1 

2. No ex post facto law. I* 10i 1 

8. No law impairing the obligation 

of contracts. . 1,1M 

4. No law creating a titled nobility, I, 10,1 

5. Citizens of each State entitled to 

privileges of citizens in all 
States... IV, 8,1 

6. No slavery.Am. XIII 

7. Citizenship defined....Am. XIV 

8. No State shall abridge privileges 

of citizens.Am. XIV 

9. Nor deprive any person of life, 
liberty or property, illegally.. Am. XIV 

0. Nor deny any person the equal 

protection of the laws.Am. XIV 

1. Right to vote |not abridged or 

denied..Ami. XIV and XV 

VII. Strict construction of personal rights. Am. IX 

k VIII. Limited powers of U. S. government. Am. X 

I. The seasons for this bill of rights.— A bill 
of rights is a statement of those rights of citizens on 
which the government ought not to encroach. Mon¬ 
archies are liable to be arbitrary and to have little regard 
for the rights of their subjects. In England the people 
secured themselves against the tyranny of the king and 
his officers by various laws. The first of these was the 
famous Magna Charta , or Great Charter, forced from 
King John in 1215, and the last was the Bill of Rights, 
passed by Parliament in 1689, just after the English 
Revolution. Each of the States had adopted a bill of 
rights during the Revolutionary war or before. 


V. Freedom prom 
Legislative < 
OPPRESSION. 


VL Freedom 

PROM OP- 
PRE 8 S I O N 

op States. 


1 


1 





















Arndts.] 


BIIiL OF RIGHTS. 


263 

One of the chief objections to the Constitution was 
that it did not contain a bill of rights. True, there 
were several things in the Constitution which properly 
belonged in a bill of rights (see analysis). But it was 
claimed that there ought to be a complete bill of 
rights, covering many points not given in the Consti¬ 
tution. 

II. TnE ADOPTION OF THESE AMENDMENTS. — As the 
States ratified the Constitution, several of them recom¬ 
mended that a bill of rights he added. When the 
First Congress met, it took into consideration these re¬ 
quests, and prepared a list of amendments to form a 
bill of rights. The House of Representatives proposed 
seventeen amendments. The Senate only agreed to 
twelve of these, and the State legislatures only ratified 
ten. These ten now form the first ten amendments of 
the Constitution. 1 

These ten amendments were proposed by Congress 
Sept. 25, 1789, and ratified Dec. 15, 1791. 

III. The need of a bill of rights. — Under a 
monarchy a bill of rights is needed, but under a re¬ 
public, there is not so much need of it. Still a bill of 
rights, even under a republic, can do no harm, and 
may sometimes do good. Undoubtedly the principles 
of this bill of rights would have been embodied in our 
laws, whether they were in our Constitution or not. 

Yet the tyranny of a majority over a minority may 
be as unjust as the tyranny of a despot, although less 
likely to occur; and this bill of rights is a safeguard 
against such tyranny. 

IY. The scope of this bill of rights. — These 
amendments were intended as limitations upon the 


1 For the two amendments not ratified, see page 250, not*. 





264 


BILL OF RIGHTS. 


[Arndts. 


government of the United States, but not upon the 
State governments. Each of the State Constitutions 
had a bill of rights, embracing all and more than all 
those named in these amendments, and the State con¬ 
stitutions still contain these bills of rights, designed to 
protect individual citizens of those States from oppres¬ 
sion by the State governments. 

This bill of rights only extends so-far as the civil and 
criminal jurisdiction of the United States goes. But 
that is of no consequence, because the State constitu¬ 
tions also guarantee nearly all these personal rights. 

Cases may, however, arise, in which this fact would 
be of consequence. Thus, the fifth amendment requires 
the indictment of a grand jury to hold a person for 
trial, except in cases of court martial. But the State 
of Wisconsin has lately returned to the old English 
practice of a preliminary examination before a justice 
of the peace. In that State, persons are constantly 
tried without the indictment of a grand jury; and yet 
the United States Constitution is not violated, because 
the first eleven amendments were not intended as limita¬ 
tions on the State governments, but on the United 
States government. It would be perfectly constitu¬ 
tional, but very unj ust, for any State to violate the per¬ 
sonal rights named in these amendments, so far as it 
affected its own citizens merely. Such a case, however, 
would be very unlikely to occur. * 1 


1 “ These amendments to the Constitution are exclusively restrictions upon 
the federal power, toprevent interference with the rights of the States, m4 

l their citizens.'' Fox v. Ohio , 5 Howard, 484. 



Am. Art. I.] RELIGION, SPEECH AND ASSEMBLY. 26* 


ARTICLE I. 

FREEDOM OF RELIGION, OF SPEECH, AHD OF ASSEMBLY. 

Congress shall make no law respecting an establishment of religion, or pro¬ 
hibiting the free exercise thereof; or abridging the freedom of speech, 
or of the press; or the right of the people peaceably to assemble, and 
to petition the government for a redress of grievances. 


I. Freedom of religion. — One of the worst op¬ 
pressions of European governments has been their at¬ 
tempt to make the people all adopt the religion of the 
government. A large part of the early settlers of this 
country fled from Europe expressly to secure religious 
freedom. 

And now in organizing the government of a new 
nation, their descendants demanded that the Constitu¬ 
tion should guarantee religious freedom. 

The freedom guaranteed is not freedom from religion, 
out freedom of religion. This country is a Christian 
country, in the sense that nearly all its inhabitants are 
Christians, but not in the sense that any one is com¬ 
pelled to accept the Christian religion, or any particular 
form of it. Any one can believe any religion, or no 
eligion at all, and the law will not interfere with his 
lith or practice so long as he does not interfere with 
jy one’s legal rights. 

This religious freedom, however, does not mean that 
lie government of the United States is irreligious. It 
nly means that it forces no religion upon the people. 
*rayer is offered at the inauguration of a President; 
each House of Congress has its chaplains and the daily 
sessions are opened with prayer. The army and navy 
have chaplains. The President recommends Thanks¬ 
giving. day to be observed. 




266 


AMENDMENTS. 


[Am. Art. IL 

II. Freedom of speech and of the press. — In 
most countries, to speak or write against the govern¬ 
ment is a great crime, and every one has to be careful 
of what he says on political subjects. In this country 
there is a complete freedom of speech, and of writing 
on political subjects, and on all other subjects so far as 
the rights of others are not interfered with. 

The freedom of speech and of the press is limited by 
the rights of other people. We have no right, under 
the laws of the United States, to slander or libel, or to 
publish obscene books. But so far as our freedom does 
not injure others, we have a right to speak or write 
upon any subject. 

III. Freedom of assembly and petition. — The 
right of holding political meetings, and of sending 
petitions to Congress or to any officer of the govern¬ 
ment, is frequently exercised. Together with the free¬ 
dom of speech and of the press, it enables the people 
to influence the government constantly, as well as by 
means of the elections. Despotic governments always 
forbid or discountenance efforts to express public opin¬ 
ion by petition or public meetings. This article guar¬ 
antees us the right to assemble for any political purpose, 
but it must be in a peaceable manner. 

ARTICLE IL 

THE RIGHT TO BEAR ARMS. 

A well regulated militia being necessary to the security of a free State, the 
right of the people to keep and bear arms shall not be infringed. 

I. The meaning of this right. — This provision 
is to secure the rights of citizens to bear arms, and to 
be trained in military exercises. Under it, Congress has 


Am. Art. III.] QUARTERING SOLDIERS. 


267 


power to make rules for the militia, but not to forbid 
the organization of the militia. Cougress can only pre¬ 
scribe the methods under which they can organize 

(I, 8, 16). 

Should the time ever come when a usurper tries to 
gain power against the will of the people, this provision 
may be found of value. In that case, the people could 
organize and defend their liberties. 

This provision was abused in the south just before the 
civil war, by the organization and arming of military 
companies to resist the authority of the United States. 
And it may be abused in like manner again in times 
when sectional strife or party feeling runs high. But 
that is better than to take away from the people the 
means of defending their liberties. 

II. Our neglect to exercise this right. — It is 
remarkable that while the founders of our government 
were so tenacious of a militia system, their descendants 
should have neglected it so entirely. No people can 
long maintain their freedom who depend upon a stand¬ 
ing army for their defense against foreign and domestic 
foes. A good militia system is the only safe defense for 
a free country. We are fortunate in being protected by 
the ocean from any foreign foe, but there is danger of 
civil wars, and of mob violence from the dangerous 
classes of our population, and for these contingencies 
we need an efficient militia system, such as we do not 
have now. 

ARTICLE , III. 

QUARTERING SOLDIERS. 

No soldier shall, in time of peace, be quartered in any house, without tho 
consent of the owner; nor in time of war, but in a manner to be pro¬ 
scribed by law. 

I. Quartering soldiers in peace. — To quarter sol¬ 
diers, means to give them board and lodging. Strictly 


268 


AMENDMENTS. 


[Am. Ari SY, 


with soldiers, board is called rations , and lodging quar¬ 
ters. But actually, when soldiers are quartered in a 
house, they have to be fed as well as lodged. No one 
needs to be told how annoying this may be to families 
to have rude soldiers quartered upon them, nor how 
expensive it may become if long continued. In peace, 
under this article, soldiers cannot be quartered on the 
citizens without their consent, which is not generally 
given. The result is that soldiers in peace generally 
lodge in barracks built for them by the government, 
and are fed by government rations. 

II. Quartering soldiers in war. — But in time 
of war, soldiers must be moved about from place to 
place so rapidly sometimes that this cannot be thus 
provided for. In summer, they can carry tents with 
them; but in winter, it may be necessary for them to 
be quartered upon the inhabitants. But this must be 
done, not arbitrarily, but according to law. 

The “owner , 11 whose consent must be obtained, ii 
the person who lives there, whether he owns the house 
or not. 


ARTICLE IV. 

UNREASONABLE SEARCHES AND SEIZURES. 


The right of the people to he secure in their persons, houses, papers a*4 
effects against unreasonable searches and seizures shall not be violated, 
and no warrants shall issue, but upon probable cause, supported by oath 
or affirmation, and particularly describing the place to be searched, and 
the persons or things to be seized. 

Unreasonable searches and seizures. — This arti¬ 
cle forbids arrests of. persons, seizure of property or 
search of buildings without a legal warrant. And this 
warrant must name the particular place to be searched 


Am. Art. V.] RIGHTS OF ACCUSED PERSONS. 


269 


or the particular persons to be seized. Thus, if property 
be stolen, neither the loser nor the officers can search 
a single house without a search warrant; nor can they 
have a general warrant to search any house they please. 
The loser must make oath that he believes the goods 
are in such a place, and on that oath the search warrant 
will be issued to search that place. 

ARTICLE V. 

RIGHTS OF ACCUSED PERSONS BEFORE TRIAL. 

No person shall be held to answer for a capital or otherwise infamous crime, 
unless on a presentment or indictment of a grand jury, except in case# 
arising in the land or naval forces, or in the militia, when in actual 
service in time of war or public danger; nor shall any person be subject 
for the same offense to be twice put in Jeopardy of life or limb; nor shall 
be compelled in any criminal case to he a witness against himself, nor 
be deprived of* life, liberty or property without due process of law; 
nor shall private property be taken for public use without Just compen¬ 
sation. 

I. The object of these two articles. — The ob¬ 
ject of this and the next amendment is to secure accused 
persons every chance to prove their innocence. It is 
thought better that ten guilty persons should escape 
punishment than that one innocent person should be 

' punished. Therefore every possible chance is given to 
an accused person in the ways provided in this article, 
and in other ways. 

II. Persons cannot be tried until indicted by 
A grand jury. —A capital crime is one that maybe 
punished with death. An im/amous crime is one that 
may be punished by death or imprisonment. A grand 
jury makes a presentment against a person on their own 
motion, but they make an indictment upon the com¬ 
plaint of some one else. In either case they must have 
evidence enough to make it probable that the person. 


270 


AMENDMENTS. 


[Am. Art. V* 

presented or indicted is guilty of the crime with which 
he is charged. There must be some probable evidence 
against a person before he can be presented or indicted 
by a grand jury. The grand jury therefore prevents 
accusations being made that have nothing in them. 
It is an annoyance and disgrace and expense to be tried 
for crime, even if not found guilty. The grand jury 
therefore prevents persons being held for trial merely 
to persecute them. 

III. Except under military law. — Armies can¬ 
not be governed by the slow processes of the courts. 
The army and navy regulations (I, 8, 14) require cer¬ 
tain duties of soldiers and sailors, and prescribe certain 
punishments for the violations of these regulations. 
These punishments are administered by the officers, at 
once, or by courts martial. All soldiers and sailors in 
actual service are liable to be tried by this military law, 
and when the militia is called out in actual service they 
also are subject to this military law. Soldiers are also 
responsible to the ordinary courts for any crime com¬ 
mitted by them. 

In case of actual war or insurrection, martial law 
may be proclaimed in the country actually the theater 
* of war. In that case the writ of habeas corpus is sus¬ 
pended (I, 9, 2), and citizens as well as soldiers may be 
tried and punished by court martial. 

IV. Cannot be put in jeopardy twice for thb 
same offense. — No person can be tried twice for the 
same offense. But if the jury disagree, he can be tried 
before a new jury. That is not another trial, but the 
same one continued. If a verdict of “not guilty” is 
given by a jury, the case can never be tried again. But 
if a person is found “ guilty ” by a jury, he has the right 
to appeal the case to a higher court. In that case, if a 


Am. Art. V.J RIGHTS OF ACCUSED PERSONS. 


271 


new trial is granted, he is not put in jeopardy; for if 
the new trial were not granted he would be punished, 
but in the new trial he has a chance of being acquitted. 

Y. Cannot be compelled to be a witness against 
himself. — No accused person can be compelled to be a 
witness against himself. And, as there is no object in 
making him testify for himself, if he does not wish to, 
an accused person is not obliged to testify upon his trial 
at all. But if an accused person wishes to make any 
statements, or to testify on his trial, he has the right to 
do so. 

VI. Cannot be deprived of life, liberty or prop¬ 
erty without due process of law. — This means that 
the government of the United States cannot lawfully 
deprive any person of life, liberty or property without 
some lawful process. By the fourteenth amendment, 
the same thing is forbidden to the States. u Due process 
of law ” means a trial before some regular court, or be¬ 
fore a court martial, in cases where a court martial has 
legal power. As this is only for soldiers and sailors 
while in service, or for persons near armies that are 
at war, u due process of law ” means for almost all 
cases, a regular trial before a court of law. No person 
can be arbitrarily put to death or imprisoned or lined. 
It must be for some violation of law of which he has 
been' duly convicted. 

VII. Private property cannot be taken for pub¬ 
lic use without compensation. — Cases often happen 
where private property is taken for public use. Thus, 
if the United States needs a certain piece of land for a 
fort or arsenal, the land will be taken whether the 
owner wishes to sell it or not. In such a case, if the 
price can be agreed upon between the owner and the 




272 


AMENDMENTS. 


[Am. Art, VL 


government, it is paid; but if tbe owner asks more than 
the government is willing to pay, the case is referred 
to a jury, who assess the value of the property, which 
is then paid. 

In case of war, the army frequently seizes provisions 
or horses, or other property, to be used at once. Ihe 
value of this is paid by the government, if it is taken 
from loyal citizens of the United States, but if taken 
from rebels or foreign enemies, the property seized is 
not paid for. 


ARTICLE VI. 

EIGHTS OF ACCUSED PERSON'S ON TRIAL, 

1a all criminal prosecutions, the accused shall enjoy the right to a speedj 
and public trial, by an impartial jury of the State and district wherel® 
the crime shall have been committed, which district shall have been 
previously ascertained by law, and to be informed of the nature and 
cause of the accusation; to be confronted with the witnesses against 
him; to have compulsory process for obtaining witness** in his favor, 
and to have the assistance of counsel for his defense. 


I. A speedy and public trial. — When any one 
is arrested on a criminal charge, he is held for trial, 
either in jail or on bail (see page 276). It would be 
unjust to hold an accused person in jail foi a long time. 
An accused person is therefore guaranteed a speedy 
trial. That will usually be at the next term of court. 
But an accused person often asks to have his trial put 
off for some reason. This request is generally granted. 
But if an accused person wishes a speedy trial, he can 
have it, under this article. 

All criminal trials are public , to secure fairness in Bia¬ 
trial. Records are kept by the clerk of the court; 
spectators are admitted, and newspapers often publish’ 
an account of the proceedings. 


Am. Art. VI.] RIGHTS OF ACCUSED PERSONS. 


273 


II. Trial by a jury or the state and district.— 
It has already been provided (III, 2, 3) that all crimes 
shall be tried by jury, and in the State in which the 
crimes were committed. This amendment provides fur¬ 
ther, that the trial shall be in the district in which the 
crime was committed. As all the larger States are divided 
into two or more judicial districts, this restricts the court 
before which a crime can be tried to the district court 
for the particular district in which the crime was com¬ 
mitted. This district cannot be created for the purpose 
of trying some one. It must have been previously as¬ 
certained by law. 

The impartiality of the jury is secured (1) by care in 
tielecting jurors, who, in the United States courts, are 
always men of character and position; (2) by giving both 
sides the privilege of challenging jurors, either for cause 
or peremptorily. If any cause is shown why a certain 
person would be prejudiced as a juror, he is challenged 
for cause, and his name withdrawn from the list. Each 
aide can also challenge a certain number peremptorily, 
that is, without giving any reason. 

A jury always consists of twelve persons, and their 
verdict must be unanimous. A grand jury (see page 
269) consists of from thirteen to twenty-four persons, 
and a majority can indict. 

III. The right to know of what he is accused.— 
The warrant on which a person is arrested, and the 
indictment on which he is held for trial, both state the 
offense with which he is charged and the time and place 
of the offense. An accused person has the right to see 
both these writs, or certified copies of them. Knowing 
exactly of what he is accused, he has an opportunity to 
prepare his defense. 

IV. The right to cross-examine the witnesses.— 

a 


274 


AMENDMENTS. 


[Am. Art. VI. 


This article gives an accused person the right to be con¬ 
fronted with the witnesses against him. The object of 
this is to give him the right to cross-examine the wit¬ 
nesses. After they have told their story, he, or his 
lawyer for him, questions them closely, to make them 
contradict themselves or to bring out something in 
favor of the accused. By such an examination by both 
sides, the whole truth is much more likely to be brought 
out. 

Y. The right to subpcena witnesses. — The “com¬ 
pulsory process for obtaining witnesses ” is called a sub¬ 
poena. Any person who knows anything of his own 
knowledge about the case may be subpoenaed as a wit¬ 
ness on one side or the other, and is thus obliged to appear 
and testify at the trial. The government already ha* 
the right to subpoena witnesses against an accused per¬ 
son. By this article, the accused also has the right to 
subpoena witnesses in his favor. 

VI. The right to have counsel. — Any accused 
person may, if he choose, act as his own lawyer. But 
the technicalities of the law are so many that even an 
intelligent and careful person would better entrust his 
defense to a good lawyer, much more an ignorant or a 
timid person. If an accused person is not able to em¬ 
ploy a lawyer, the judge will appoint a lawyer to defend 
the prisoner, and the government will pay him. 

ARTICLE VIL 

TRIAL BY JURY IN COMMON LAW CASES. 

to. salts at common law, where the value in controversy shall exceed twenty 
dollars, the right ol trial by jury shall be preserved, and no fact tried by 
a jury shall be otherwise re-examined in any coart of the United States 
than acoording to the roles of the common law. 


Am. Art. VII.] 


TRIAL BY JURY. 


275 


I. The right of trial by jury in common law 
oases. — The right of trial by jury in criminal cases 
has already been guaranteed (III, 2, 3, and Am. VI). 
The same right is now guaranteed in common law cases, 
where the value in controversy exceeds twenty dollars. 
Where the amount in controversy is smaller, it ie not 
worth while to empanel a jury. The time and expense 
of a jury trial is considerable, and it is not fair to cause 
that expense to the government, and that delay to more 
important cases, for the sake of a trifling suit. 

II. Facts finally determined by a jury trial.— 
In the Constitution (III, 2, 3), the Supreme Court is 
given appellate jurisdiction both as to law and fact. 
This was meant to cover cases in equity, cases in ad¬ 
miralty, and maritime cases, all of which are tried by 
the court alone without a jury. But for fear it should 
be held to give the Supreme Court appellate jurisdiction 
in suits at law, both as to law and fact, this clause was 
added to the bill of rights. 

The common law of England is that whole body of 
customs, precedents and forms which grew up in En¬ 
gland in the course of English history. (See page 209.) 
The American courts recognize this common law, so far 
as it is not abrogated by any express provision of this 
Constitution or of a statute. Under the common law 
all suits are tried before a judge and jury. The judge 
determines the law and the jury the facts of the case. 

The rules of common law allow only one way of 
re-examining facts once tried by a jury, and that is by 
a new trial before the same court for good reasons. The 
law as applied to any case may be re-examined by a 
writ of error or an appeal to a higher court; but in 
such cases the verdict of the jury is held conclusive as 
to the facts. 


AMENDMENTS. 


[Am. Art VI1L 


276 

The effect of this provision is — 

L To allow equity, admiralty and maritime cases to 
be carried up to an appellate court and re-examined 
both as to the law and the facts. 

2. But to prevent common law cases, which include 
most ordinary law suits, from being re-examined as to 
the facts, unless a new trial is granted before the same 
court. 

ARTICLE VIII. 

EXCESSIVE BAIL, FINES AND PUNISHMENTS. 

Excessive bail shall not be required, nor excessive fines imposed, nor crn«S 
and unusual punishments indicted. 

I. Excessive ball forbidden. — Bail is the secu¬ 
rity given, that a person arrested for any offense will 
appear in court and stand his trial, when the time 
comes. When no bail is given, the accused person will 
be kept in jail till his trial; not to punish him, for he 
has not yet been convicted of any crime; but to make 
sure that he will be on hand to be tried. Bail is not 
allowed in capital cases, because a man who expects to 
be hung will be likely to forfeit any security in order to 
escape. 

If excessive bail is required, the accused will not be 
able to furnish it, and it amounts to the same thing as 
to refuse to admit the prisoner to bail. What is excess¬ 
ive bail in any case, must be determined by the serious¬ 
ness of the offense charged, and the wealth of the 
prisoner or his friends. 

II. Excessive fines foridden. — Many offenses art 
punished by fine alone, or by fine and imprisonment. 
If excessive fines are imposed, they may easily amount 
to confiscation of the prisoner’s property. The punish- 



Am. Art. X.] 


LIMITED POWERS. 


277 


ment by fine is intended to be a light punishment for a 
light offense. But an excessive fine may be made a very 
heavy punishment. The laws regulate the amount of 
fines for those offenses which are finable. 

III. Cruel and unusual punishments forbid¬ 
den. — Cruel and unusual punishments are understood 
to mean such punishments as whipping, branding with 
a hot iron, maiming, torturing on the rack, burning at 
the stake, breaking on the wheel, drawing and quarter¬ 
ing. These were, until a century or two ago, inflicted 
everywhere; but have now been abolished in all civil¬ 
ized countries. These are forbidden by this article. 

ARTICLE IX. 

STRICT CONSTRUCTION OF PERSONAL RIGHTS. 

toe enumeration in the Constitution of certain rights shall not be eoos* 
strued to deny or disparage others retained by the people. 

It is impossible to enumerate fully all the personal 
rights which the tyranny of government might possibly 
violate, and certainly they are not all enumerated in the 
Constitution. For fear that it might be inferred that 
the government could infringe on any personal rights 
not expressly guarded by the Constitution, this article 
was inserted. 

ARTICLE X. 

LIMITED POWERS OF THE U. 8. GOVERNMENT. 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or 
to the people. 

I. The power given to the general govern¬ 
ment. — In the first Congress the motion was twice 
made to amend this article so that it should read, “ The 




AMENDMENTS. 


[.4id. Art.X. 


878 

powers not expressly delegated to the> United States by 
the Constitution,” and was twice lost. It was pointed 
out by Madison then, that a government, to be a gov¬ 
ernment, must have implied as well as express powers', 
that it is impossible to foresee and name in a Constitu¬ 
tion all the cases which will arise; and this argument 
prevented this word being inserted. Notwithstanding 
this fact, it has been the habit of lawyers and statesmen 
to quote thii article with the word u expressly ” inserted, 
the very thing which its authors purposely refused to 
do. Had this been made the reading of the Constitution, 
we could never have bought Louisiana or Florida or 
Alaska constitutionally; nor could we constitutionally 
have built a light house or established the signal service 
As it is, the United States has all the powers granted 
to it by this Constitution, and all other powers that are 
fairly implied in these. All other powers are prohib¬ 
ited to the United States government. 

II. The reserved powers belong to the people, 
not to the states. — Who has these reserved powers 
then? The advocates of State rights say that all rights 
not expressly given to the United States are reserved 
for the States. We have already seen the falseness of 
that word “ expressly.” But are all the reserved powers 
given to the States? No. For in the first place we 
have certain powers expressly forbidden to the States 
(I, 10), some of which are also prohibited to the United 
States. And this article says that certain powers are 
reserved to the people. 

The truth is that in this country the people are the 
source of all power. They have delegated certain 
powers expressed or implied to the United States gov¬ 
ernment by this Constitution, certain others to the 
State governments, and have reserved the rest, not to 


Am. Art XL] 


LIMITED POWER. 


279 


be exercised by either till called for by the people. And, 
moreover, lest certain powers extremely liable to abuse 
should be exercised, they have expressly prohibited one 
or both governments from exercising them. 

But it does not follow that the States, any more than 
the United States, can exercise any powers not expressly 
prohibited to them. All powers not given expressly or 
by fair implication to the United States government or 
to the several State governments, are held in reserve by 
the people. 

The people of the United States may grant additional 
powers to the general government, or take away some 
already granted, by an amendment to this Constitution. 
The people of any State may do the same with their 
State government, subject to the limitations of this 
Constitution. 


AMENDMENTS. 


[Am. Art. XL 


MISCELLANEOUS AMENDMENTS. 


ARTICLE XI. 1 

STATE REPUDIATION. 

“Let ns speak plain; there is more force in name* * 

Than most men dream of; and a lie may keep 
Its throne a whole age longer, if it skulk 
Behind the shield of some fair-seeming name.” 

— Lo W JLL. 

The judicial power of the United States shall not he construed to extent 
to any suit in law or equity, commenced or prosecuted against one of 
the United States by citizens of another State, or by citizens or subject* 
of any foreign State. 

I. Cause oe this amendment. — At the close of the 
Revolutionary War, the States, as well as the United 
States, were burdened with the debts incurred in that 
struggle, and scarcely able to pay them. Article III, 
Section 2, of the Constitution, gave the United Staten 
courts jurisdiction over controversies “between a State 
and citizens of another State.” After a time suits were 
begun in the Supreme Court (III, 2, 2) by their creditors. 
The Supreme Court decided that, 8 under the Constitu¬ 
tion, a State could be sued for a debt the same as s 
private person. 

This decision led at once to this amendment, which 
cuts off all suits against a State by private individuals, 
those already begun as well as future suits. Most of 
the States were not in a situation to pay their debts on 
demand, and this amendment operated as a stay-law, to 
give them time in which to pay their debts, as well as 
a bankrupt law for those which could never pay them. 

*This amendment was proposed by Congress, March 5, 1794, and ratified 
January 8, 1798. 

* Chisholm w. Georgia. 




Am. Art. XI.] 


STATE REPUDIATION. 


281 


II. Results of this amendment. — The States were 
at once freed from the fear of any power which would 
compel them to pay their debts. A creditor of a State, 
like a creditor of the United States, must now depend 
upon the good faith of his debtor. 

Most of the States eventually paid their Revolution¬ 
ary War debts. But other debts, since contracted, have 
been repudiated by many States, especially the newer 
States. These States have not often repudiated their 
whole debt, but some part of it, where there was some 
special provocation, as where the debt had been incurred 
by corrupt officials, or where the proceeds had been mis¬ 
applied in the construction of railroads. 

But these provocations are not sufficient excuse, and 
it remains the disgrace of the United States, that while 
it own obligations have been paid with scrupulous good 
faith, so many State debts have been repudiated in 
whole or in part. 

III. This amendment does not coyeb municipali¬ 
ties within a state. —Although a State cannot be sued 
in the United States courts by a private person, the parts 
of the State, such as counties, towns, villages or cities, 
can be sued, and are frequently sued, by private persons. 
If the creditor lives in the same State, he of course sues 
in the State courts. But if he does not live in the same 
State, he can sue in the United States courts. 



282 


AMENDMENTS. 


[Am. Art. ill. 


AMENDMENT XII . 1 

THE ELECTION OF PRESIDENT. 

•*Th’ older a guv’ment is, the better ’t suits; 

New ones hunt folks’a corns out like new boots; 

Change jes’ for change is like them big hotels, 

Where they shift plates, an’ let ye live on smells.” 

— Bigklow Papih*. 

The reason for this amendment. — The disputed 
election of 1801 showed the dangers of the method of 
electing President and Vice President under the Con¬ 
stitution as it then stood. This amendment was passed, 
making such changes as the experience of that election 
had shown to be necessary. Another experience of a 
disputed election in 1877, will probably call for another 
amendment embodying another method of electing 
President. 

This amendment has already been treated of in an¬ 
other place as a substitute for Article II, Section l y 
Clause 3. 


1 This amendment was proposed bv Congress December 12, 1908, and *»• 
ratified September 25, 1804. For the text of this amendment, see p lflA. 



Am. Art. XIII.] RESULTS OF THE CIVIL WAR. 


28* 


AMENDMENTS XIII-XV. 

RESULTS OF THE CIYIL WAR. 

“If New and Old, disastrous feud, 

Mast ever shock, like armed foes; 

And this be true, till Time shall close. 

That principles are rained in blood.” 

—Tkkntsoh. 

I. Analysis of these amendments. 

1. Slavery abolished (Am. XIII). 

2. Citizenship and its privileges defined (Am. XIV, 1). 

(a.) Citizenship defined. 

(b.) States cannot abridge the privileges of citizen*. 

(c.) States must do equal justice to all persons. 

8. Representation in Congress (Am. XIV, 2). 

(a.) Representatives apportioned according to population. 

(b.) Representation abridged as the right to vote is abridged. 

4. Disability of rebels to hold office (Am. XIV, 3). 

(a. ) Rebels who have broken their oaths excluded from offic*. 
(b.) But their disabilities may be removed by Congress. 

5. The public debt versus the rebel debt (Am. XIV, 4). 

(a.) Public debt declared valid. 

(b.) Rebel debts declared illegal and void. 

(c.) Claims for the loss of slaves declared illegal and void. 

6. Negro suffrage established (Am. XV). 

II. The adoption of these amendments. — Th# 
great Civil War, from 1861 to 1865, drew with it many 
important consequences. Chief' among these is the en¬ 
tire reorganization of society in the slave-holding States. 
These amendments mark a great social and political 
revolution; and they were meant to secure the results 
of the Civil War in the surest manner possible under 
our government. 

The reconstruction measures, which went along with 
these amendments, took the political power from the 



284 


AMENDMENTS. 


[Am. Art. XJLL 


former ruling class of the south, the white aristocracy, 
and put it in the hands of the former slaves and their 
white friends. It is not wonderful that counter revolu¬ 
tions should have since taken place in all those States, 
which have put their governments hack into the hands 
of the former ruling class, the white aristocracy. 

But these counter revolutions have not restored the 
state of society as it was before the war. These three 
amendments have made the negro free, a citizen and a 
voter. These three great facts will remain as legal facts, 
although the negro in some parts of the south may be 
defrauded of some of the privileges of a citizen by un¬ 
lawful violence or fraud. 

III. A DISPUTED QUESTION. 

Were these amendments constitutionally adopted f Yes, on either 
theory of the relations of the rebel States. Congress held that rebel 
States have lost their rights as States, and therefore that only three- 
fourths of the loyal States are needed to ratify the amendments. 
This decision by the only lawful authority (for the Supreme Court 
cannot decide political questions) binds us legally, whether it was 
a right or a wrong decision. Three-fourths of the States then rec¬ 
ognized as in the Union ratified each of these amendments, and 
they are therefore legally a part of the Constitution. 

But even if we accept the State rights theory, these amendments 
were legally ratified, for three-fourths of all the States ratified each 
of them. It is true the rebel States adopted them under a sort of 
compulsion, for Congress required them to ratify these amendments 
as one of the conditions of receiving them into full membership in 
the Union. But that did not make their ratification of these 
amendments invalid. It was the legal act of each State. 

For a time there was a disposition on the part of some to repudi¬ 
ate these amendments as soon as possible. But all political parties 
have repeatedly declared that these amendments are valid. And 
it is not likely that any political party will ever seriously raise any 
doubts as to the validity of these amendments. They have been 
recognized by Congress, by the President and by the Supreme 
Court. 



Am. Art XIIL] SLAVERY ABOLISHED. 


23 * 


ARTICLE XIIL 

SLAVERY ABOLISHED. 

Neither slavery nor involuntary servitude, except as a punishment for 
crime, whereof the party shall have been duly convicted, shall exist 
within the United States, or any place subject to their jurisdiction. 
Congress shall have power to enforce this article by appropriate legislation. 

I. Slavery the cause of the civil war. — On® 
of the chief causes of the Civil War was the “irrepressi¬ 
ble conllict 11 between two social organizations so diverse 
as those of the free and of the slave States, bound 
together in one nation. Other causes may be found; 
such as the difference in climate, and therefore in the 
character of the inhabitants and in the nature of their 
industries; the difference of character and ideas between 
the first settlers of north and south; or the fatal poison 
of the “ State rights ” doctrine. But whatever effects 
these had, all clustered around the institution of slavery, 
to attack or to defend it. Slavery perhaps was not the 
chief cause of the difficulties between north and south, 
but it was certainly the chief expression of those diffi¬ 
culties. Without it, the war perhaps would never have 
come, and certainly not at the time and in the way it 
did. And thus slavery came to be popularly called the 
cause of the war. It was natural that when the war 
closed with the victory of the north that slavery should 
be abolished. 

II. The origin and scope of this article. — The 
form of this article is taken from article VI of the 
ordinance of 1787, for the Government of the North¬ 
west Territory (now the States of Ohio, Indiana, Illi¬ 
nois, Michigan and Wisconsin). w Any place subject to 
their jurisdiction,” includes not only the States, but also 






286 


AMENDMENTS. [Am. Art. XIV, 1. 


the Territories, the District of Columbia, forts, arsenals 
and dockyards, United States vessels or naval stations 
owned by us in other parts of the world. 

Congress would have power to enforce this article by 
appropriate legislation (I, 8, 18) without the power be¬ 
ing expressly granted here, and this section is therefore 
superfluous. The same thing can be said of the similar 
sections at the close of articles XIV and XV. 

ARTICLE XIV. 

MISCELLANEOUS PROVISIONS RELATING TO THE dm 

WAR. 


SECTION 1. 

CITIZENSHIP AND ITS PRIVILEGES. 

All persons born or naturalized In the United States, and subject to the 
jurisdiction thereof, are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of the United 
States, nor shall any State deprive any person of life, liberty or property 
without due process of law, nor deny to any person within its jurisdiction 
the equal protection of the laws. 

I. Citizenship defined. — The question of who are 
and who are not citizens had been left somewhat vague 
till this amendment was adopted. And the exact posi¬ 
tion of free negroes was in doubt. The thirteenth 
amendment had made all negroes free persons. This 
amendment now made them citizens. Hereafter there 
can be no question as to who are citizens of the United 
States. 

All persons born in the United States, except wild 
Indians, are natural-born citizens, and any foreigner 
may become an adopted citizen by being naturalized. 
(See page 88.) 




Inn. Art. XIV, 1.] 


CITIZENSHIP. 


287 


II. State citizenship.— Any person who answers 
to the above definition of a citizen of the United States 
may become a citizen of any State by taking up his 
residence in it. But he cannot be a citizen of two 
States at the same time. Nor can he become a citizen 
of any State in any other way than by gaining a resi¬ 
dence within its jurisdiction. Whether a person has 
his legal residence in one State or in another, is a ques¬ 
tion which is sometimes hard to decide. But once 
establish the residence in a particular State, and the 
citizenship in that State follows. 

Not all citizens of the United States are citizens of 
any particular State. They may be residents of the 
District of Columbia or of a Territory. Nor is it nec¬ 
essary that all citizens of a State should be citizens of 
the United States. Several States give the privilege of 
voting and holding office to persons who have merely 
declared their intention of becoming citizens. This 
certainly makes them citizens of the State, but not of 
the United States. TIiub we see that citizens of the 
United States and citizens of the several States are not 
necessarily the same. A person may be one of them 
without being both. 

III. Privileges anh immunities op citizens.— 
As the Supreme Court of the United States has refused 
to enumerate these privileges, we need not expect to be 
able to give these completely. But in general terms we 
may say that citizens of the United States, as such, are 
entitled to the protection of the government in foreign 
lands, and to the equal benefits of the laws of the United 
States at home. Thus: 

(a.) A citizen of the United Stabw is entitled to the protection of 
the United States against any unjust treatment by foreign govern¬ 
ments. 


288 


AMENDMENTS. 


[Am. Art. XIV, L 


(b.) If he is of age, he may take op government land under the 
homestead act, on certain easy conditions, the chief of which is that 
he shall live on it five years, and thus have a farm given to him 
free. Bat a married woman cannot take up a homestead, because 
that would give two homesteads to the same family. An unmar¬ 
ried woman, who is of age, may take up a homestead on the same 
conditions as. a man. 

(c.) He is entitled to the use of the post office, the navigable 
rivers and lakes, and the mining lands, on the same terms as other 
citizens. 

(d.) He is entitled to the equal protection of the laws of the United 
States, and also to equal punishment for violating those laws. It 
should be remembered that within the States, United States law 
has a limited scope only. 

(e.) He is entitled to hold any United States office for which he 
is legally qualified, and to which he has been regularly elected or 
appointed. 

Now the privileges and immunities of citizens of the 
United States belong to all citizens of the United 
States, without regard to color, birthplace, religious 
opinions, party, sex or age; and no State can infringe 
them lawfully. 

IV. Protection to life, liberty and property. — 
Our two-fold system of government, United States and 
State governments, limits the privileges of citizens of 
the United States as such, and leaves a wide margin for 
oppression by the States within their own jurisdiction. 
This amendment, therefore, goes on to guarantee not 
only to the citizens of the United States, but to all per¬ 
sons, equal justice by the State governments. By this 
clause the United States guarantees to all persons 
within its borders, whether citizens or aliens, the in¬ 
alienable rights named in the Declaration of Independ¬ 
ence. “We hold these truths to be self-evident, that 
all men are created equal; that they are endowed by 
their Creator with certain inalienable rights; that 


Am. Art. XIV, 1.] CITIZENSHIP. 


289 


among these are life, liberty, and the pursuit of happi¬ 
ness; that to secure these rights, governments are in¬ 
stituted among men, deriving their just powers from 
the consent of the governed.” 1 

Except in the case of the slaves, the practice of our 
government has been in accordance with these princi¬ 
ples. The great argument against the Constitution, as 
it was prepared by the convention, was that it did not 
sufficiently secure these personal rights to life, liberty, 
and the pursuit of happiness. These rights were made 
perfectly secure by the first ten amendments, as against 
any oppressions of the United States government. And 
at last, after slavery was abolished, these rights are by 
this amendment secured as against the oppressions of 
the State governments, and thus the Constitution guar¬ 
antees to every person within the reach of its authority 
the inalienable rights to life, liberty and property, and 
to the equal protection of the laws. To the citizens of 
the United States, it guarantees this not only in this 
country, but in foreign lands, so far as the government 
has power to protect them; to foreigners, it guarantees 
diem so long as they remain within the United States. 

V. Disputed questions. 

1. Can a State have citizens who are not citizens of the United 
States ? This is left an open question by this section. It is prob¬ 
able, however, that a State has this power. Several States have 
made voters of a large number of foreigners who have only de¬ 
clared their intention to become citizens, and, if they are voters, 
they must of course be citizens of the States; and no act of any 
branch of the United States government has ever questioned this 
right ef the States. 

2. What is the status of aliens who have declared their intention 
to become citizens ? They are not citizens, but they have taken the 
first step toward becoming citizens, and are therefore entitled to the 

1 The student should memorise tills extract from the Declaration of Ind» 
pandence. 

8 



290 


AMENDMENTS. [Am. Art. XIV, 2. 


protection of the government, but not to any of the special priv¬ 
ileges of citizens. The government has several times protected 
them against injustice in foreign lands. 

3. Can a Chinaman be naturalized ? No, he cannot be natural¬ 
ized as the law now stands. White men and negroes may be, but 
not Chinamen. The law is plain, notwithstanding a difference on 
this point in the practice of the United States courts. But China¬ 
men can become citizens of some of our States under the State laws. 

4. How can an Indian become a citizen ? An Indian cannot be 
naturalized in the manner prescribed for foreigners. The practice 
has been to declare a tribe or a part of a tribe citizens by a special 
act of Congress on their renouncing their tribal government. In 
some cases, tribes or parts of tribes have been again allowed, by 
act of Congress, to give up their citizenship, and reassume their 
tribal government. Under this section, it would seem that any 
individual Indian ought to be allowed to renounce his tribe and 
become a citizen; but Congress has passed no law to that effect. 

5. Does this section give women the right to vote ? No, it does 
declare them citizens, which they were before, but it does not make 
them voters. Citizenship and suffrage are not equivalent terms. 
But in any State women may be made voters, if the State chooses, 
without any violation of the United States Constitution. The Con¬ 
stitution does not make women voters, but it does not forbid the 
States making them voters. 


SECTION 2. 

SUFFRAGE. 

Representatives shall be apportioned among the several States according to 
their respective numbers, counting the whole number of persons in each 
State, excluding Indians not taxed. But when the right to vote at any 
election for the choice of electors for President and Vice President of the 
United States, Representatives in Congress, the executive and judicial 
officers of a State, or the members of the Legislature thereof, is denied to 
any of the male inhabitants of such State, being twenty-one years of age, 
and citizens of the United States, or in any way abridged, except for par¬ 
ticipation in rebellion or other crime, the basis of representation therein 
shall be reduced in the proportion which the number of male citizens 
shall bear to the whole number of male citizens twenty-one years of aga 
in such State. 

I. The object of this section. — This is an at¬ 
tempt to secure indirectly that which was secured 


Am. Art. XIV, 2.] 


SUFFRAGE. 


291 

directly by the fifteenth amendment—negro suffrage. 
The effect of this section would have been to put a pow¬ 
erful inducement before the Southern States to give 
negroes the right to vote; and the result would undoubt¬ 
edly have been that they would have gradually con¬ 
ceded that right to them. But as this is secured 
directly by the fifteenth amendment, we need only 
consider what effect this section may have in the future. 

II. The effect of this section. — The effect of this 
section, as things now are, is as follows: 

1. It changes the basis of representation from that 
given in Article I, section 2, and makes it the whole 
population except uncivilized Indians. This had al¬ 
ready been practically done by abolishing slavery. 

2. It is assumed that manhood suffrage shall be the 
rule — that all citizens of the United States who are of 
the male sex and twenty-one years old are voters, unless 
specially disqualified. 

3. It is established, that no State ought to abridge 
the right to vote for any cause except for participation 
in rebellion or other crime. And this extends to State 
elections as well as to United States elections. 

4. The penalty for a State thus abridging the right to 
vote is, that it shall have its representation in Congress 
proportionately reduced. If a State chooses to take 
this penalty, it may abridge the right to vote in certain 
ways. No State has yet been deprived of a part of its 
representation under this section. 

III. What powers over the suffrage abb left 
to the several states. — Assuming that manhood 
suffrage of citizens of the United States is the standard 
qualification for voting, the States may constitutionally 
increase the number of voters as much as they please; 
' and they may reduce that number in the following ways: 






892 


AMENDMENTS. 


(Am. Art. XIV, 2 . 


1. They may shut out traitors from the right to vote. 
The justice of this is evident. After the Civil War, for 
some time in many of the Southern States those who 
had aided in the rebellion were shut out from voting. 
But it was found impossible to disfranchise permanently 
the most intelligent and wealthy people of the south. 
These restrictions have now all been removed and the 
former rebels now control the Southern States. 

2. They may disfranchise criminals. In every State 
persons convicted of crimes are disfranchised; but they 
are frequently restored to their civil rights by a pardon. 

3. They may require an educational qualification sub¬ 
ject to the penalty of having their representation re¬ 
duced. In a few of the Northern States, it is required 
of every voter that he be able to read and write: but 
in those States the number of illiterate persons is very 
small. If such a qualification should be required in the 
Southern States, it would shut out such a large fraction 
of their natural voters, that their representation in Con¬ 
gress would be greatly reduced. In Georgia and Ala¬ 
bama, according to the census of 1870, more than one- 
half of the voters are unable to read and write. In these 
States, such a qualification for the suffrage would reduce 
their Representatives in Congress to less than half the 
number they now have. 

4. They may require a property qualification, subject 
to the penalty of losing a part of their representation 
in Congress. If a considerable amount of property were 
required for a voter, it would reduce the number of 
voters very much, because the mass of the voters are 
men who live by their labor, and have no great amount 
of property. The total value of property in the United 
States, by the census of 1870, is over $300 for each man, 
woman and child in the United States, or $1,500 for each 


Am. Art. XIV, 3.] REBEL DISABILITIES. 


893 


family. A property qualification of $100 would only 
shut out the paupers, the tramps, and a few young men 
just beginning in life, and would not greatly reduce the 
number of voters. But a property qualification of 
$1,000 would shut out more than one-half of the voters 
of every State. It is safe to say that any considerable 
property qualification will never be required of voters 
while our present form of government lasts. 

But many States require a poll tax of $1.00 to $1.50 
of each voter before he is allowed to vote. This is not 
a violation of this section, because no one is really pro¬ 
hibited from voting as long as the amount of tax is so 
small. 

SECTION 3. 

REBEL DISABILITIES. 

Wo person shall be a Senator or Representative in Congress, or elector of 
President or Vice President, or hold any office, civil or military, under 
the United States, or under any State, who, having previously taken aa 
oath as a member of Congress, or as an officer of the United States, or 
as a member of any State Legislature, or as an executive or Judicial offi¬ 
cer of any State, to support the Constitution of the United States, shall 
have engaged in insurrection or rebellion against the same, or given aid 
or comfort to the enemies thereof; but Congress may, by a vote of two- 
thirds of t,ach House, remove such disability. 

I. Political disabilities the only puhishmeht 
of rebels ih the civil war. — The disability to hold 
office provided for in this section is the only punish¬ 
ment inflicted by the United States upon the rebels in 
the Southern States. Every person who had borne 
arms against the government, or who had given aid and 
comfort to the rebel army or government, was guilty 
of treason. (Ill, 3.) This made nearly every white 
man in the seceded States a traitor, and liable to pun¬ 
ishment for his treason. But not a single person waj 
ever brought to trial on that charge, not even Jefferson 


AMENDMENTS. 


[Am. Art XIV, 4. 


*94 

Davis, the President of the Southern Confederacy. 
The only punishment inflicted was that prescribed in 
this section. 

II. The extent of these disabilities. — The ex¬ 
tent of these disabilities is limited: 

1. Not all rebels are punished, but only those who 
had previously held a position under the United States 
or any State, in which they had sworn to support the 
Constitution of the United States. Rebellion alone 
was not punished, but only rebellion joined with vio¬ 
lation of an official oath. 

2. The punishment is only a disability to hold office 
It is not death, or imprisonment, or fine, or even dis¬ 
franchisement; but only that the guilty person shall 
not hold office. 

3. These disabilities were only to last until Congress 
by a two-thirds vote of each House removed them.. 
Within a very few years these disabilities were removed 
from nearly all; and now the persons from whom 
these disabilities have been removed fill most of the 
positions to which the votes of the Southern States can 
elect them in the State governments and in Congress. 

No government in the world was ever so lenient 
toward conquered rebels. It should be noted that this 
section applies to future rebellions as well as to one 
that is past; and that Congress may not always be so 
lenient if a new rebellion should arise in any part of 
onr land. 

SECTION 4. 

THE PUBLIC DEBT VERSUS THE REBEL DEBT. 

Th* validity of the public debt of the United States, authorized by law, in¬ 
cluding debts incurred for payment of pensions and bounties for services 
in suppressing insurrection or rebellion, shall not be questioned. 
But neither the United States nor any State shall assume or pay any 
debt or obligation incurred in aid of ir.*\faction or rebellion againsfl 




Am. Art. XIV, 4.J THE PUBLIC DEBT. 


295 


the United States, or anj claim for the loss or emancipation of any 
ilare ; bat all such debts, obligations and claims shall be held illegal 
and void. 

1. The reason of this section. — War is an ex¬ 
pensive luxury, and cannot be wholly paid for in cash. 
As carried on in modern times, a great war always 
causes a great public debt on both sides. Our Civil 
War was carried on so long, and on such a scale, that 
great public debts were contracted by both sides. 

No conquering power ever pays the debts of the 
beaten side, and certainly no government in the world 
ever paid the expenses incurred by rebels who were de¬ 
feated. On the other hand, good faith to our creditors, 
and the desire to keep our credit good, would doubtless 
make us pay our national debt without any constitu¬ 
tional guarantee. But to make assurance doubly sure, 
this section was added. 

II. The provisions of this section. — 1. It prom¬ 
ises that the public debt of the United States shall never 
be legally questioned. In fact, we have been paying 
off our debts quite rapidly, and our credit is now equal 
to that of any nation in the world. 

2. It prohibits the payment by the United. States, or 
by any State, of any debt incurred in support of the 
rebellion. This lifts a load from the Southern States. 

3. It prohibits the payment by either the United 
States, or by any State, of any claim for the loss of 
slaves by the war, or by thek being set free. The free¬ 
dom of the slaves was a consequence of the Civil War. 
Had they been freed by peaceful legislation, they would 
doubtless have been paid for. But they were freed in 
consequence of the war undertaken by their masters, 
and the government therefore rightly refused to pay 
for them. 






296 


AMENDMENTS. 


[Am. Art XIV, ft. 


SECTION 5. 

APPROPRIATE LEGISLATION. 

T)t« Congress shall have power to enforce, by appropriate legislation, tho 

provisions of this article. 

The power to enforce this article. — Congress 
has undertaken to enforce the provisions of this article 
by appropriate legislation. 

This section is unnecessary, as Congress would have 
power to pass all needful and appropriate laws to en¬ 
force this article under the general power given in Arti¬ 
cle I, Section 8, Clause 18. Even without that, common 
sense would teach that where certain things are ordered 
to be done, the government must be understood to have 
the power to see that they are done. Else the govern¬ 
ment would stand in the position of that politician 
tfho was in u favor of the Maine law, but opposed to 
enforcing it.” Common sense would teach us that the 
government must be considered to have all powers 
necessary to enforce the Constitution. 

J 


Am. Art. XV.} 


NEGRO SUFFRAGE. 


897 


ARTICLE XY. 

NEGRO SUFFRAGE. 

The right of the citizens of the United States to rote shall not he denied or 
abridged by the United States or by any State on account of race, color or 
previous condition of servitude. 

The Congress shall have power to enforce this article by appropriate legisla¬ 
tion. 

The negro guaranteed the right of suffrage. — 
For fear that section 2 of the last article would not 
be enough to secure the negroes the right to vote, this 
amendment also was passed. Thus these three amend¬ 
ments each secure an essential right to the negro — 
the thirteenth, the right to freedom; the fourteenth, 
the right to citizenship; the fifteenth, the right to vote. 
Thus at last the principles of our government are car¬ 
ried out consistently, so far as the negroes are concerned. 
Whether they are carried out in our treatment of the 
Chinese and the Indians, is a question. But the great 
blot on our character as a nation which loves liberty , 
has been washed out — washed out in blood. And our 
nation now carries out the grand words of Daniel 
Webster: 

44 Liberty and Union, now and foreyxb, one and 

INSEPARABLE.” 




THE AMERICAN UNION. 


1 profess, Hr, in my career hitherto, to have kept steadily in view the 
prosperity and honor of the whole country, and the preservation of our 
Federal Union. It is to that union we owe our safety at home, and our 
consideration and dignity abroad. It is to that union that we are chiefly 
indebted for whatever makes us most proud of our country. That union 
we reached only by the discipline of our virtues in the severe school of 
adversity. It had its origin in the necessities of disordered finances, pros¬ 
trate commerce, and ruined credit. 

Under its benign influences, these great interests immediately awoke, as 
from the dead, and sprang forth with newness of life. Every year of its 
duration has teemed with fresh proofs of its utility and its blessings; and 
although our territory has stretched out wider and wider, and our popula¬ 
tion spread farther and farther, they have not outrun its protection or its 
benefits. It has been to us all a copious fountain of national, social, per¬ 
sonal happiness. 

I have not allowed myself, sir, to look beyond the Union, to see what 
might lie hidden in the dark recesses behind. I have not coolly weighed the 
chances of preserving liberty, when the bonds that unite us together shall 
be broken asunder. I have not accustomed myself to hang over the preci- 
vice of disunion, to see whether, with my short sight, I can fathom the 
depth of the abyss below; nor could I regard him as a safe counselor in the 
affairs of this government, whose thoughts should be mainly bent on con¬ 
sidering, not how the Union should be best preserved, but how tolerable 
might be the condition of the people when it shall be broken up and 
destroyed. While the Union lasts, we have high, exciting, gratifying pros- 
vects spread out before us, for us and our children. Beyond that I seek 
not to penetrate the veil. God grant that, in my day at least, that curtain 
may not rise. God grant that on my vision never may be opened what lies 
behind. 

When my eyes shall be turned to behold, for the last time, the sun in 
heaven, may I not see him shining on the broken and dishonored frag¬ 
ments of a once glorious Union; on States dissevered, discordant, belliger¬ 
ent; on a land rent with civil feuds, or drenched, it may be, in fraternal 
blood! Let their last feeble and lingering glance, rather, behold the gor¬ 
geous ensign of the republic, now known and honored throughout the 
earth, still full high advanced, its arms and trophies streaming in their 
original luster, not a stripe erased or pollu'3d, not a single star obscured— 
bearing for its motto no such miserable interrogatory as, What is all this 
worthf nor those other words of delusion and folly, Liberty first, and 
Union afterward; but everywhere, spread all over in characters of living 
light, blazing on all its ample folds, as they float over the sea and land, 
and in every wind under the whole heavens, that other sentiment, dear to 
every true American heart — Liberty and Union, now and forever, one 
and inseparableJ 


Dajtcxl Wnim, In 1880 



INDEX 


[The figures refer to pages.] 


ANALYSES. 

The Constitution generally, 8 
The House of Representative, 21. 

The Senate, 80. 

Elections and Sessions, 44. 

Powers of each House Separately, 49. 
Powers of Members, 60. 

The Process of Making Laws, 66. 
Powers of Congress. 72. 

Taxes. 77. 

Prohibitions on Congress, 122. 
Prohibitions on the States, 133. 
Organization of the Executive, 149. 
Powers and Duties of President. 178. 
Impeachments, 198. 

Organization of the Judiciary, 203. 
Jurisdiction of the Courts, 206. 

Trial of Crimes, 217. 

Treason, 219. 

Relations of States, 226. 

Amendments (how made), 247. 
Supremacy of this Constitution, 262. 
Bill of Rights, 260. 

Results of the CivU War, 288. 


A. 

Accounts, 129. 

Accusation to be furnished prisoner, 
273. 

Accused person, rights of, 269, 272. 
Additional powers of Congress, 119. 
Additional prohibitions on Congress, 

181. 

Adjournment of Congress, 59. 
Adjournment of Congress by the 
President, 194. 

Admiralty, cases of, 211. 

Admission of States, 284 
Agreements of States, 140. 

Alliances of States. 134. 
Ambassadors, received by President, 
183. 

Ambassadors, cases affecting, 210. 
Amendments, how made, 247-251. 
Amendments, The, 260-297. 
Amendments proposed, 250. 


Appellate jurisdiction. 218 
Appropriations, 129. 
Appointing power, 185. 
Aristocracy, defined, 9. 
Anns, the right to bear, 288. 
Army, of states, 140. 

Army, the regular, 104. 
Arrest, privilege from, 61. 
Attainder, bills of, 125, 188. 
Attainder of treason, 223. 
Ayes and noes, 57. 


B. 

Bail, 276. 

Bank bills, 92. 

Bankruptcy, 90. 

Biel of Rights, 260-279. 

Bill of rights, reasons for, 282. 
Bill of rights, how adopted, 263. 
Bill of rights, scope of, 268. 

Bills of credit, 135. 

Bills, may originate where, 65. 
Bills, may become laws, how, 68 


C. 

Cabinet, the, 175. 

Captures on land and sea, 101. 
Census, the, 32. 

Chartered colonies, 19, 

Charters of corporations, 187. 

Circuit courts, 204. 

Citizens, privileges of, in other states, 

228 . 

Citizenship, state, 287. 

Civil service reform, 191. 

Civil War, Results of, 288-297. 
Coinage, 91, 135. 

Colonial governments, 18. 

Colonies, chartered, 19. 

Colonies, proprietary. 18. 

Columbia, District of, 118. 
Commander-in-chief, 174. 

Commerce, powers over, 82. 
Commercial restrictions, 128. 
Commissioning officers. 197. 








300 


INDEX. 


Common law, 209. 

• Compacts of states, 140. 

Confederation, Articles of, compared 
with the Constitution, 12. 

Confederations of States, 134. 

Confederacy, the United States not a, 
13. 

Conflicting: claims of States, 214. 

Congress, Powers of, 72-121. 

Congress, Prohibitions, upon, 122- 
132. 

Confess, its name, 19. 

Congress, its,term, 20. 

Congress, elections, 44. 

Congress, sessions, 46. 

(See also Representatives, House of. 
Senate, Powers of Congress, ami 
Prohibitions upon Congress.) 

Congressmen (see Representatives.) 

Congressional districts, 23. 

Congressional action which need not 
be submitted to the President, 70. 

Constitution, objects of, 11. 

Constitution, compared with articles 
of Confederation, 12. 

Constitution, Supremacy of, 252-256. 

Constitution, Ratification of, 257- 
259. 

Constitutionality of laws, 202. 

Contracts, laws impairing the obliga¬ 
tion of, 136. 

Controversies to which the U. S. is a 
party, 211. 

Controversies between States, 212. 

Controversies between a State and 
citizens of other States, 213. 

Controveriess between citizens of 
d i Iferent States, 213. 

Controversies about land grants, 214. 

Controversies between citizens and 
foreigners, 215. 

Copyright, 95. 

Corporations, charters of, 137. 

Corruption of blood, 222. 

Counsel, to defend accused, 274. 

Counterfeiting, 93. 

Courts of the United States, 97, 203. 

Criminals, fugitive, 229. 


D. 


Debate, freedom of, 62. 

Debt, the public, 80, 295. 

Debts ana engagements of govern¬ 
ment valid, 253. 

Delegates, territorial, 33. 

Democracy defined, 9. 

Departments of government, how 
divided, 17. 

Departments, executive, 175. 
Disabilities or rebels, 293. 

Discipline, powers of each house, 68. 
Disputed questions — 

concerning representation, 25, 28. 
concerning rules of order, 66. 


Disputed questions —continued, 
relating to writ of habeas corpus 
125. 

relating to expenditures. 128. 
relating to absence of President, 
170. 

relating to treaties, 184. 
relating to treason, 224. 
relating to fugitive criminals, SSI. 
relating to new states, 235. 
relating to amendments, 249. 
relating to ratification, 259. 
relating to the last three amend¬ 
ments, 284. 

relating to citizenship, 289. 
Disqualifications of representatives, 
28. 

District Courts, 204. 

District of Columbia, 113. 

Districts, Congressional, 23. 

Duties, 78, 139. 

E. 

Elections, returns and qualification*. 
49. 

Electors, presidential, 153. 

Enacting Clause. 9-15. 

Equity, cases in, 207. 

Execution of the laws by the Presi¬ 
dent, 196. 

Executive, carries out the laws, 144. 
Executive, independent of legisla 
tive, 144. 

Executive, vested in one man, 145. 
Executive, responsible to the people, 
146. 

Executive officers, all agents of the 
President, 147. 

Executive, in whom vested, 151. 
Executive Department, 144-200. 
Exclusive legislation of Congrea* 
113. 

Excises, 79. 

Expel, power to, 54. 

Export duties, 127, 139. 

Ex post facto laws, 126. 136. 
Extradition of criminals, 229. 


F. 

Felonies on the high seas, 98. 

Fines, excessive, 276. 

Forfeiture for treason, 223. 

Freedom of religion, 265. 

Freedom of speech, 266. 

Freedom of assembly and petitloax 
266. 

Fugitive criminals, 229. 

Fugitive slaves, 231. 

G. 

Governments classified by thsto 
forms, 9. 




INDEX 


301 


a 

Habeas ootpus, 124. 

House of KKPRK.sKjrrAmnM, 21-85. 
|See also Congress and Powers.) 
Bouse of Representative*, its organi¬ 
sation, i£4. 

L 

Incidental powers of Congress, 115. 
Indiana, uncivilized, not represented, 
81. 

Indians, commerce with, 85. 
Indictment, 269. 

Incidental powers of Congress, 115. 
Internal revenue, 79. 

International law, 99. 

Interior department, 180. 
Impeachment, 35, 12, 198. 

Import duties. 78, 139. 

Imposts, 79. 


J. 

Joint Resolutions, 69. 

Journal of each House, 57. 

Judiciary department. 201-225. 
Judiciary, detlnes and applies the 
law, 201. 

Judges, term of office, 205. 

Judges, salary, 205. 

Jurisdiction of courts, 207. 

Jury, grand, 269. 

Jury, trial by, 217. 

Jury in civil cases. 274. 

Justice, department of, 181. 


L. 

Laws, the process of making, 6& 
Law, cases in, 207. 

Law of the land, the supreme, 258, 
Law, due process of, 271. 

Leoisiativk department. 15-148. 
Legislative powers, vested in whom. 

Local self government and national 
unity, 14. 

M. 


arque, letters of, 101, 134. 
easures and weights, 92. 
Message, the President’s, 192. 
Militia, the power to call out, 110. 
Militia, the power to organize, 111. 
Militia, the right to bear arms, 265. 
Monarchy, defined, 9. 

Money, coined, 91,135. 

Money, paper, 92,185. 


N. 

Nation, the United States is a, 18. 
Nations, law of, 99. 

National unity and local self govern¬ 
ment. 14. 

Natural born citizens, 87. 
Naturalization, 85. 

Naturalization of women and chil¬ 
dren, 89. 

Navy, the, 107, 

Navy department, 180. 

Negro suffrage, 297. 

Nobility, titles of, 130, 138. 


o. 


Oath of office, 171, 255. 

Obiects of the Constitution, 11. 
Office, no religious test for, 256. 
Offices, not held by Congressmen, 68t 
Original jurisdiction, 216. 


P. 

Pairs, 53. 

Pardoning powei, 181. 

Patents, 96. 

Personal rights construed strictly, 

277. 

People, the source of power, 10. 
Piracy, 98. 

Popular government best, 10. 
Postofflce department, 181. 

PostoilIces and post roads, 93. 

Powers of government limited, 277. 
Powers of each house separately, 46. 
Powers of members, 60. 

Powers op Congress, 72-121. 
I*resentment of grand iiuy, 289. 
President, The, 144-200. 
term of office, 151. 
re-election, 152. 
election of, 153-166. 
qualifications of, 166. 
vacancies, 169. 
salary, 170. 
oath of office, 171. 

Presidents, list of, 163. 

President, Powers and Duties ©». 
173-197. 

commander-in-chief, 174. 
executive department, 175. 
the cabinet, 176. 
reports of departments, 177. 

£ ardoning power, 181. 

•eaty-making power, 183. 
appointing power, 185. 
removals, 187. 

temporary appointments, 189. 
message, 192. 
convening Congress, 192. 
adjourning Congress, 194. 
reception of ambassadors, 196, 



302 


INDEX, 


President, etc.— continued, 
execution of the laws, 198. 
commissioning officers, 197. 
Presidential elections, history of, 164. 
Presidential electors, 153. 

President of the Senate, 40. 

Private property taken for public 
use, 271. 

Prizes, 101. 

Prohibitions on Congress, 122-132. 
Prohibitions on the States, 183-143. 
Proprietary colonies, 18. 

Protection of life, liberty and prop¬ 
erty, 288. 

Provinces, royal, 18. 

Publicity of proceedings of Congress, 

55. 

Publishing the journal, 57. 
Punishments, cruel and unusual, 277. 


Q. 


Qualifications of voters, 24. 
Qualifications of Representatives, 28. 
Qualifications of senators, 40. 
qualifications of President and Vice- 
President, 166. 

Qualifications, table of, 168. 
Qualifications, each House judge of, 
49. 


Quartering soldiers. 267. 

Questions disputed (see Disputed 
Questions.) 

Quorum, 52. 



Records, state, 227. 

Relations of States, 226-246. 

Religious tests for office, 256. 

Removals from office, 187. 

Representatives, House of, 21-86. 
organization, 22. 
soie powers of, 84. 
election of its officers, 84. 
impeachment, 85. 

Representatives, 

chosen by the people, 22. 
for a short term, 28. 
by districts, 23. 
qualifications, 26. 
apportionment, 80, 290. 
number, 82. 
vacancies, 84. 

Reprisal, letters of, 101,184. 

Republican form of government, 10, 

244. 

Repudiation, 280. 

Resolutions, joint, 69. 

Restrictions on Congressmen, 68. 

Restrictions on commerce, 128. 

Returns, each House judge of, 49. 

Rules of each House, 53. 

Rules for the army and navy, 108. 


a 


Salary of President, 170. 

Salaries of Senators and Representa¬ 
tives, 60. 

Searches and seizures, 288. 

Senate, the, 86-43. 
organization of, 37. 
represents the states, 87. 
President of the, 40. 
tries impeachments. 42. 

(See also Congress and Powers.) 
Senators, how chosen, 38. 
term of office, 38. 
classification and vacancies, 89. 
qualifications of, 40. 

Sessions of Congress, special, 192. 
Ships of war, forbidden to states 

Slave Trade, the, 123. 

Slaves, fugitive, 231. 

Slaves, three-fifths representation of 
31. 

Slavery abolished, 285. 

Speaker, 34. 

State department, 177. 

State legislatures, concurrent power* 
of, 75. 

State records. 227. 

State repudiati x n, 280. 

States, commerce between, 84. 

States, new, admission of, 233. 

States, guaranteed a republican fonn 
of government, 244. 

States protected against invasion a* 
rebellion, 245. 

States represented by senators, 8Y. 
States, recognition of, 51. 

States, Prohibitions on, 133-141 
States, Relations of, 226-246. 
Suffrage, 24, 290, 297. 

Supreme court, 97, 208. 


T. 


Tariff, 78. 

Taxation, a power of Congress, 76. 
Taxes, according to population, 82, 
127. 

Taxes, direct and indirect, 77. 

Tender in payment of debts, 186 
Territorial delegates, 83. 

Territories, the, 238. 

Territory acquired by the ’(halted 
States, 242. 

Territory, claims and session W, by 
states, 240. 

Tonnage duties, 140. 

Treason, 219-225. 

Treasury department, 178. 

Treasury notes, 92. 

Treaty-making power, 188. 

Trial of crimes 217. 
speedy, public, 272. 
by jury of district, 278. 







INDEX. 


/ 

303 


Trial by Jury, 217. 

Troops, foi bidden to states, 140. 


u. 

United States, gr o wth at, tt. 


V. 

4 

Vacancies In House, 34. 
Vacancies in Senate, 39. 
Vacancies in Presidency, VtL 
Veto of the President, 37. 
Vice President. 40,162. 
election of, 168-163. 
qualifications of, 167. 

\ 


Volunteer soldiers, 111. 

Voters, qualifications of, 24, 397. 


W. 

War department, 179. 

War, forbidden to States, 141. 
War, power to declare, 100. 
Weights and measures, 92. 
Witness against himself, 271. 
Witnesses cross-examined, 87k 
Witnesses subpoenaed, 273. 


Y. 

Teas and nays, 07. 









AH' EXPOSITION 

OF THE 




STATE 





» 


BY 


A. O. WRIGHT, 

1 1 7 

Author of “An Exposition of the Constito* 
tion of the United States” and of 
“American Constitutions.” 




NINETY-SIXTH EDITION 




MADISON, TVIS.j 

MIDLAND PUBLISHING COMPANY. 

1895. 














COPYRIGHT, 

DAVID ATWOOD 

1873. 


COPYRIGHT, 

A. O. WRIGHT. 

1883. 


COPYRIGHT, 

A. O. WRIGHT. 
1895. 




Tracy, Gibbs & Co. 

PRINTERS AND STEREOTYPERS. 
MADISON, WIS. 




PREFACE TO TEE FIRST EDITION 


The reason for the existence of this little book is to be found 
in the amendment to our school law, enacted by the legislature 
of 1871, which requires the constitution of the United States 
and of the state of Wisconsin to he taught in our common 
schools, and studied hy our teachers in order to receive cer¬ 
tificates. 

The object of this law is to acquaint our citizens with the 
principles of our government and the machinery used in carry¬ 
ing it on. The only way in which this knowledge of our civil 
government can he enforced, hy law, is through our common 
schools and their teachers. Directly, this law affects only the 
teachers and pupils in our public schools; but, indirectly, ifc 
reaches a great number of parents and friends whose attention 
is called to the subject through them. 

The author hopes that this little work will supply the de¬ 
mand thus created for a short and simple exposition of the 
constitution of this state, which shall unfold the principles 
and philosophy of our government, as well as explain the legal 
phraseology of the constitution, and which shall be adapted 
for school use, while at the same time it may he a convenient 
hand hook of study and reference for those citizens who care 
to study the theory of their government. 

In the preparation of this work a prime object has been to 
make it concise and, therefore, cheap in price, so as to bring it 
within the means of every voter and of every teacher and ad¬ 
vanced pupil in our schools. It lias not been possible within 
these limits, therefore, to answer every collateral question that 
could be asked about matters referred to in this constitution. 
Readers of this work are referred to the Legislative Manual, 
to the statutes of the state or to any good lawyer for answer® 
to such questions. 



4 


PREFACE. 


The thanks of the author are due to Gen. Samuel Fallows,, 
state superintendent of public instruction, for the first sugges¬ 
tion of the plan of this work, and for much valuable assistance 
and counsel since. His thanks are also due to II. H. Hatch, 
Esq., of New Lisbon, one of the soundest lawyers in this state, 
for much valuable help, especially upon articles I and VII, 
where a clear knowledge of legal terms and methods is most 
needed. 

New Lisbon, May, 1873. 


PREFACE TO THE FIFTEENTH EDITION 


The ten years in which this book has been before the public 
have been more fruitful in constitutional amendments than 
any other decade in the history of our state. Both as regard# 
the number of changes and their importance, the amend¬ 
ments of this period exceed those of the twenty-five previoui 
years of our existence as a state. With the change to bien¬ 
nial legislatures, the process of constitutional amendment has 
become more tedious; and it is a reasonable conjecture that 
few amendments will be made for some time to come. Tlii# 
seems, therefore, to be a favorable time to rewrite the whol*» 
work and to give it an entirely new typographical dress, at th» 
same time making numerous minor changes, which the us* 
of the book by many thousand readers and scholars has su$> 
gested. 

Madison, Wis., July, 1883. 




TABLE OF CONTENTS. 


PitRLl If IN ARY MATTERS, - 

Preface, - 
Table of Contents, - 

What Constitutes a State, - 

General Analysis of the Constitution of Wisconsin, 

Analysis and Exposition, - 

Enacting Clause, ----- 
Ai c. I. Declaration of Eights, 

Boundaries, - 

Suffrage, - 


a-8 

3 

5 

7 

8 


II. 

[II. 

IV. 

V. 

VI. 

VII. 
nil. 

IX. 

X. 

XI. 

XII. 

XIII. 

XIV. 

Undex, - 


Legislative, - 

Executive, - 

Administrative, - 

Judiciary, - 

Finance, - - - - - 

Eminent Domain and Property of the State, 

Education, ■» 

Corporations, - 
Amendments, - 

Miscellaneous Provisions, - 
The Change from Territory ko State, 


-&-170 

9 

14 

40 

47 

58 

- 86 
99 

- 105 

126 
132 
136 
144 
149 
153 
160 

171 








WHAT CONSTITUTES A STATEt 

What constitutes a state f 
Not high-raised battlement or labored mound, 

Thick wall or moated gate; 

Not cities proud with spires and turrets crowned; 

Not bays and broad-armed ports, 

Where, laughing at the storm, rich navies ride ; 

Not starred and spangled courts, 

Where low-browed baseness wafts perfume to pride. 

No: — men, high-minded men, 

With poioers as far above dull brutes endued 
In forest, brake or den, 

As beasts excel cold rocks and brambles rude — 

Men who their duties know, 

But know their rights, and, knowing, dare maintain. 
Prevent the long-aimed blow, 

And crush the tyrant, while they rend the chain; 

These constitute a state; 

And sovereign law, that state's collected ivill, 

O'er thrones and globes elate, 

Bits empress , crowning good, repressing ill. 

— Sir William Jones, from the Greek. 


GENERAL ANALYSIS 

OP THE 

CONSTITUTION OF WISCONSIN. 


THE GOVERNMENT OF WISCONSIN. 


1. The Enacting Clause. Art. 

8. What the Governing is for (Declaration of Rights).. 

8. What is to be Governed (Jurisdiction).. n an 

Who represent the people (the voters). 

Legislative 

Who represent the vot¬ 
ers (Representative 
Powers).... 


How it is to be Gov¬ 
erned (Forms and 
Powers of Govern¬ 
ment). 


(Special limitations)... 


Executive. 

Administrative... 

Judicial. 

Educational. 

Financial. 

Corporations. 

Miscellaneous.... 


8. How the Government May be Changed (Amendments).. 

6. How the Change from Territory to State Shall be Made 
(Schedule)... 


3 B 





















THE CONSTITUTION OF WISCONSIN. 


THE ENACTING CLAUSE. 


“ Great were the hearts, and strong the minds, 

Of those who framed in high debate 
The immortal league of love, that binds 
Our fair broad empire, state with state. 

s. 

'* Wide, as our own free race increase, 

Wide shall extend the elastic chain, 

And bind in everlasting peace 
State after state, a mighty train.”— Bryant. 

We, the people of Wisconsin, grateful to Almighty God for our freedom, la 
order to secure its blessings, form a more perfect government, insure 
domestic tranquillity and promote the general welfare, do establish this 
constitution. 

I. The source of these words. — This enacting 
clause is plainly taken from the enacting clause in the 
United States constitution, with'some changes. Notice 
the order in which the objects of the constitution are 
given: First freedom , then government, and then the two 
great ends of government, domestic tranquillity and the 
general welfare. 

II. The people the authors of this constitu¬ 
tion - . — The people are the source of all political power 
in Wisconsin, and u the people of Wisconsin 11 establish 
this constitution. Thus the very first words of the con¬ 
stitution show the republican form of government in 
this state, which is guaranteed to all the states by the 




10 


THE ENACTING CLAUSE 


United States constitution. This constitution is 1 ><A 
granted by a monarch who can take it away again when 
he pleases; nor is it established by a few nobles for 
their own benefit. Here, in America, we are all sover¬ 
eigns, and make laws and constitutions to suit ourselves. 
And, therefore, the enacting clause states that it is the 
;people of Wisconsin who make this constitution. 

III. Thanks to Almighty God. — It is very proper 
for the people of the state in framing the constitution 
to express their thanks to God. This does not establish 
any religion, for this constitution (art. I, secs. 18 and 
19) guarantees complete freedom of religion. But it 
does mean this: That the people of Wisconsin believe 
in God and worship Him; and believe, moreover, that 
they owe their freedom to Him. 

IV. The fikst object of this constitution. — The 
first and greatest object with Americans always is u to 
secure the blessings of freedom.” And in accordance 
with this, the first article of our state constitution is a 
declaration of rights, intended to secure the blessings 
of freedom to every person in Wisconsin, citizen or for¬ 
eigner, of whatever color, race, age or sex. And then 
the constitution goes on to. arrange the machinery of 
government, so as to “ insure domestic tranquillity and 
promote the general welfare.” 

V. The second object of this constitution. — To 
secure the blessings of freedom, we need a settled gov¬ 
ernment with good laws, justly carried out. It is not 
enough to be free; we must be protected in our freedom 
from being oppressed by any one else; and this can only 
be done by a regular and a just government. 

Before this constitution was adopted and the state admitted 
to the Union, the government of Wisconsin was territorial. 
It was a territory of the United States, and it was governed 
by the United States. The governor and judges of the terri- 


THE ENACTING CLAUSE. 


11 


tory were appointed by the president, and the laws passed by 
the territorial legislature could be overruled at any time by 
congress, and, indeed, congress could, if it pleased, have 
abolished the legislature altogether, and itself made laws for 
the territory. But when this constitution was adopted and 
congress had made the territory of Wisconsin a state, with 
this constitution as its fundamental law, “a more perfect 
government” was formed. Within the limits fixed by the 
United States constitution, the people of the state can now 
manage their government to suit themselves. The state gov¬ 
ernment is “a more perfect government” than the territorial 
government was. 

VI. The third object of this constitution. — A 
good government will “insure the domestic tranquil¬ 
lity” t y preventing riots and insurrections, by restrain¬ 
ing crimes of every kind, and by defending the state 
against war or invasion. And these things the consti¬ 
tution provides for. 

VII. The fourth object of this constitution.— 
Besides these, a good government will u promote the 
general welfare” by promoting education, by fostering 
agricu' ure, manufactures and commerce, and by secur¬ 
ing tv ijvery man, woman and child in the state, a fair 
chance in life. These things the constitution provides 
for either directly or indirectly. And thus the consti¬ 
tution fulfills the objects set forth in this enacting 
clause, as we shall see by the farther study of it. 

VIII. The state and the nation. — The state of 
Wisconsin is one of the states of the United States of 
America. 

The name state is properly given only to an inde¬ 
pendent political community. It was properly applied 
to each of the thirteen original states before the adop¬ 
tion of the United States constitution, because they 
were then in theory independent political communities 


12 


THE ENACTING CLAUSE. 


United for mutual defense. But the name, having been 
once given, was preserved when the facts were changed. 
The United States is now a nation; and the state of 
Wisconsin is one of the political divisions of the 
United States, but is not an independent political com¬ 
munity. 

When the United States constitution was adopted, 
the states gave up to the United States their independ¬ 
ence, and all their powers as nations, and retained only 
the powers necessary for local self-government. In gen¬ 
eral terms, we may say that the relations of the state 
and United States governments are these: 

The United States government has all the powers 
needed for national independence. 

The state government has all the powers needed for 
local self-government. 

The state of Wisconsin has therefore no powers which 
belong to nations as independent political bodies. The 
following points of subordination are distinctly speci¬ 
fied in the United States constitution: 

I. The state can adopt no other form of government except 
the republican form. (U. S. Const., IV, 4.) 

II. The state cannot change its boundaries, except by the 
consent of the United States. (U. S. Const., IV, 3, 1.) 

III. All the state officials must take an oath to support the 
United States constitution. (U. S. Const., VI, 3.) 

IV. The supreme law of the land is the United States law, 
consisting of: (1) The constitution of the United States. 
(2) All laws of the United States not unconstitutional. (3) All 
treaties made with foreign powers. All parts of the state con¬ 
stitution and laws which conflict with the United States law 
are null and void. (U. S. Const., VI, 2.) 

V. The state cannot have relations of peace or war with 
other nations. 

1. It cannot leave the Union to join another nation. (U. S. 
Const., I, 10, 1.) 


THE ENACTING CLAUSE. 


13 


2. It cannot make treaties with other states or with foreign 
powers. (U. S. Const., I, 10, 2.) 

3. It cannot make war, except when invaded, or in imminent 
danger. (U. S. Const., I, 10, 2.) 

4. It cannot make war indirectly by sending out privateer- 1 
ing vessels. (U. S. Const., I, 10, 1.) 

5. It cannot prepare for war by keeping troops or ships, 
without the consent of congress. (U. S. Const., I, 10, 3.) 

VI. The state cannot control its commerce with other na¬ 
tions or with other states of the Union, in any of the follow¬ 
ing ways: 

1. By levying duties or tonnage on that commerce. (U. S. 
Const., I, 10, 2.) 

2. By coining money, issuing paper money, or making any¬ 
thing but gold or silver a legal tender. (U. S. Const., I, 10, 1.) 

3. By impairing the obligation of contracts. (U. S. Const., 

I, 10, 1.) 

VII. The state cannot infringe on the personal rights of ita 
citizens or of others living within its jurisdiction, in either of 
these ways: 

1. By depriving any person of life, liberty or property, with¬ 
out due process of law. (Amendment XIV to U. S. Const.) 

2. By denying any one within its jurisdiction the equal pro¬ 
tection of the laws. (Amendment XIV.) 

3. By abridging the privileges or immunities of citizens of 
the United States. (Amendment XIV.) 

1. By bills of attainder. (U. S. Const., I, 10, 1.) 

5. By ex post facto laws. (U. S. Const., I, 10, 1.) 

6. By creating a titled aristocracy. (U. S. Const., I, 10, 1.) 

7. By establishing slavery or serfdom. (Amendment XIII 
to U. S. Const.) 

VIII. The United States has decided, by the fourteenth 
amendment, who shall be citizens of this state. The state 
cannot deprive these citizens of their citizenship. But the 
state can make other persons citizens of the state, and has 
actually done so. 

IX. The state can decide who of its citizens shall vote; but 
it cannot deny any one the privilege of voting because of his 
race or color, (Amendment XV to U. S. Const.) 


14 


DECLARATION OF RIGHTa 


[I. 


ARTICLE I. 

DECLARATION OF RIGHTS. 

* Our fathers’ God, from out whose hand 
The centuries fall, like grains of sand; 
We meet to-day, united, free, 

And loyal to our land and Thee, 

To thank Thee for the era done, 

And trust Thee for the opening one. 


\ 


Oh, make Thou us, through centuries long. 

In peace secure, in justice strong; ' . 

Around our gift of freedom draw 
„ The pageants of Thy righteous lawl 

And, cast in some diviner mould, 

Let the new cycle shame the old.” 

— Whittier’s Centennial Kymn 

Se*s. 

I. General Principle — Government is established to secure personal 
freedom. 1 

a. Slavery prohibited. 2 

b. Freedom of speech guaranteed. 8 

c. Freedom of assembly and petition guaranteed. 4 

d. Legal justice guaranteed — 

1. Trial by jury guaranteed. 8 

2. Excessive bail and punishment 

forbidden. 6 

3. A fair trial guaranteed. 7 

4. Fair preliminaries guaranteed .. 8 

To prosecutors. 9 

1. Treason defined. 10 


Special 

Appuca- 

TIONB. 


To defend¬ 
ants . 


«. Powers of 

government 
against in¬ 
dividuals 
limited. 


12 


2. Rights of search limited. 11 

3. Bills of attainder and corrup¬ 

tion of blood forbidden .... 

4. Ex post facto laws forbidden 
6. Contracts not to be impaired 

6. Private property respected by 

the state. 18 

7. Feudal tenures prohibited. 14 

8. No distinction against resident 

aliens. 15 

Freedom of 


9. Debtors’rights 


person. 16 

Exemption of 
property .. 1? 
























1: 1.] 


PERSONAL FREEDOM. 


15 


E. Special 
Applica¬ 
tions . 


e. Powers of 
government 
against in- 
d i v i d u al s 
limited. 


10. Religious freedom 


8. Dow Freedom is to be Maintained 


For indi¬ 
viduals 18 
For offi¬ 
cers ... 19 

11. Military always subordinate ... 20 

12. Writs of error guaranteed.21 


23 


SECTION I. 

GOVERNMENT IS ESTABLISHED TO SECURE PERSONAL 

FREEDOM. 

All men are born equally free and independent, and have certain inherent 
rights; among these are life, liberty and the pursuit of happiness. To 
secure these rights, governments are instituted among men, deriving 
their just powers from the consent of the governed 

I. The origin of this section. — This section is 
taken, with very slight change, from the Declaration of 
Independence. Compare the following extract from 
that document with the section of the constitution of 
Wisconsin, given above: 

“We hold these truths to be self-evident, that all men are 
created equal; that they are endowed by their Creator with 
certain inalienable rights; that among these are life, liberty 
and the pursuit of happiness. That to secure these rights, 
governments are instituted among men, deriving their just 
powers from the consent of the governed.” 

II. Definition of freedom. — All men are born 
equally free and independent; but freedom and inde¬ 
pendence do not consist in having a voice in the gov¬ 
ernment, but only in being justly ruled and protected 
by a government of our own choice; otherwise women 
and children might complain that they do not share in 
the freedom of this country, because they do not vote. 

Nor does freedom consist in doing as we please. No¬ 
body does just as he pleases in any civilized community. 
We all must restrain some of our desires, or else en- 









16 


DECLARATION OF RIGHTS. 


[1: 1 . 


croacli upon some one else’s rights. Our liberty con¬ 
sists in doing as we please, so long as we do not interfere 
with some other person’s liberty. We have not an 
absolute right to everything we choose, but we u have 
certain inherent rights.” 

II. Inherent rights. — There are two kinds of rights 
inherent rights and conventional rights. Inherent rights 
are those rights that belong to everybody everywhere, 
and which it is the business of the law always to secure. 
Conventional rights are those that are given by law or 
by custom that has the force of law; and since they are 
given by law, they can be repealed by law. Inherent 
rights can be taken away by law, unjustly; for laws are 
not always just. Conventional rights may justly be 
taken away by law; for what the law has given, the 
law can take away. 

For instance, the right to vote is a conventional right. The 
constitution, for various reasons, forbids certain persons to 
vote — women, children, persons who have come into the state 
within a year, wild Indians, convicts, United States soldiers 
and sailors. These persons cannot complain that the principle 
stated in this section has been violated; for the right to vote is 
not an inherent, but a conventional right. The people of the 
state, should they see fit, can extend the right to vote to any 
or all of these classes; or, if they see fit, can still further re¬ 
strict the right to vote by shutting out other classes, and no 
one can reasonably complain. But if, because of the re¬ 
striction or the extension of the suffrage, the inherent rights 
of any class are put in danger, they can rightfully complain; 
not because of that restriction or extension of the suffrage, 
but because of the consequences that flow from it in violation 
of their inherent rights. 

Again, the right to hold property, subject to a reasonable 
taxation from the state, is an inherent right. The government 
has no right to take any one’s property from him without pay¬ 
ing him for it, or to let any one else take it from him at all 
without his consent. A man has always the right to his earn- 


I: 1.] 


INHERENT RIGHTS. 


17 


mgs; for it is with them that he buys the means of life and 
happiness, and it is the business of government to protect him 
in that right. But nobody has an inherent right to some par¬ 
ticular kind of property; like land, for instance. The owner¬ 
ship of land is only a conventional right, and, therefore, the 
state reserves to itself, in article IX, the right of “ eminent do¬ 
main,” and will take a man’s land whenever it is needed for a 
street or any other public purpose, whether he is willing to lei 
it go or not. But, though the state can thus justly break 
through his conventional right to hold land, it cannot justly 
take away his inherent right to his property, and, therefore, 
th« constitution provides (I, 13) that whenever the state takes 
away any one’s land, it must pay him a fair price for it. 

These examples will show the distinction between inherent 
and conventional rights, which must be kept carefully in mind 
all through this article. The object of this Declaration of Righto, 
with which our state constitution so nobly begins, is to secure 
the inherent rights of every person who comes within the juris¬ 
diction of the state. The line between inherent and conven¬ 
tional rights is very carefully and ably drawn. And it is to 
secure these rights by some power stronger than a bit of 
printed paper that the machinery of the state government was 
established in the rest of the constitution. 

III. The end of government is to secure our 
inherent rights. — The end of all government is to 
secure us in our individual freedom. A government 
that does not do this, is not worth having. The first 
duty of every government, whether it is a monarchy, an 
aristocracy or a democracy, is to secure the subjects or 
citizens of that government in those inherent rights, 
without which they cannot be truly free. The right to 
life, to personal liberty, to have a fair chance in life, 
and to seek our happiness as we please, so long as we do 
not infringe on the rights of any one else, are inherent 
rights. To secure them is the object of all government. 
There is no peculiar sacredness in any institutions of 
government. They are but the means by which the end 
a 


18 


DECLARATION OF RIGHTS. 


[I: 2. 


of good government is attained. Any form of govern¬ 
ment needs the consent of those who are governed, and, 
if it becomes oppressive, they have a right to change it. 
Acting on this principle, expressed in the Declaration of 
Independence, u That to secure these rights govern¬ 
ments are instituted among men, deriving their just 
powers from the consent of the governed; and that 
whenever any form of government becomes destructive 
of these ends, it is the right of the people to alter or 
abolish it, and to institute a new government, laying its 
foundation on such principles, and organizing its pow¬ 
ers in such form as to them shall seem most'likely to 
effect their safety and happiness , 11 the founders of Amer¬ 
ican liberty revolted from the English government and 
established one of her own. And should the govern¬ 
ment of this state ever become oppressive and unjust, 
the people of the state will, doubtless, change it — 
peaceably if they can, forcibly if they must. 

SECTION II. 

SLAVERY PROHIBITED. 

There shall be neither slavery nor involuntary servitude In this state, other¬ 
wise than for the punishment of crime, whereof the party shall have 
been duly convicted. 

I. Slavery prohibited. — When the state constitu¬ 
tion was adopted, African slavery was allowed in many 
states of our Union, and it was, therefore, necessary for 
the state of Wisconsin to put itself on one side or the 
other of this question. This state prohibited slavery by 
this section. 

Slavery violates the inherent right to liberty and the 
pursuit of happiness, and is, therefore, prohibited justly 
and consistently with K^tion l of this article. 


I: 3.] 


FREEDOM of speech. 


19 


This provision in our state constitution is now made need¬ 
less by the thirteenth amendment to the United States constU 
tution, which prohibits slavery everywhere in the United 
States, and, of course, in Wisconsin as well as elsewhere; so 
that now, even if the people of Wisconsin should repeal thi 
section, that would not bring slavery here. 

The wording of the thirteenth amendment to the Un 
States constitution is plainly taken from this section and o 
similar sections in the constitutions of other states, and 
the Ordinance of 1787. 

II. Imprisonment for crime excepted. — A person 
may be shut up in the state’s prison, and thus have his 
liberty taken away, whenever he shows that he is a 
dangerous character by doing some crime. His right 
to liberty and the pursuit of happiness is taken away 
from him for these reasons: to stop him for a time from 
infringing on other people’s rights, to reform him, if 
possible, and to prevent others from committing like 
crimes, by fear of a like penalty. 

SECTION III. 

FREEDOM of speech. 

Every person may freely speak, write and publish his sentiments on all 
subjects, being responsible for the abuse of that right, and no laws shall 
be passed to restrain or abridge the liberty of speech or of the press. 
In all criminal prosecutions or indictments for libel, the truth may be 
given in evidence; and if it shall appear to the jury that the matter 
charged as libelous be true, and was published with good motives and 
for justifiable ends, the party shall be acquitted, and the jury shall 
have the right to determine the law and the facts. 

I. Freedom of speech. — Next to the right to life 
and to liberty of body, is the liberty of speech. In 
most countries it has been thought that it is not safe 
to let people speak or write what they please. But in 
the United States the people govern, and therefore we 
are not afraid to allow free speech. In Wisconsin, as 


20 


DECLARATION OF RIGHTS. 


LI: 3. 


in the rest of our country, everybody can speak or 
write or print whatever he pleases, with one exception,, 
named in this section. 

We have found out in America that the truth will take care 
of itself, if we only let it alone and give =i a fair chance; and 
that the more we try to help the truth :<y law, the more we 
really hurt it. Freedom is the best atm osphere for truth to 
live in. Tennyson’s words in praise of England are just aa 
true of America: 

“ It is the land that freemen till. 

That sober-suited Freedom chose; 

The land where, girt with frien ds or foes, 

A man may speak the thing he will; 

M Where faction seldom gathers head; 

But by degrees to fullness wr ought, 

The strength of some diffusiv e thought 
Hath time and space to work an d spread.” 

II. Limited by the rights of reputation. — The 
liberty of speech is limited by the rights of other peo¬ 
ple. If we were free to say anything we chose, we 
might harm other people very greatly. Therefore, al¬ 
though we may speak our minds, we must not do it so 
as to injure any one’s reputation. 

This is the rule of the English comm on law, which would 
be our own law on the subject, were it not for the rest of thia 
section, as the common law is adopted by this constitution. 
(XIV, 13.) 

Under the common law, the rule was “the greater the 
truth, the greater the libel.” 

But under this section of our constitution, any one may 
tell that which will injure the reputation of another, on cer¬ 
tain conditions: First, it must be true. Se cond, the one who 
tells it must tell it with good motives — that is, not maliciously 
or spitefully. Third, he must tell it for j justifiable ends — 
that is, not for the sake of hurting some or e’s reputation, but 
to do some good. 

Usually, the judge determines the law, and the jury the 
facts in the case; but in libel suits, under tb section, the jury 


1: 4.1 FREEDOM OF ASSEMBLY AND PETITION. 21 


decide everything — the fact, whether the thing charged waa 
actually said, or written, or printed, and the law, whether 
the thing charged is a libel within the meaning of the law. 
By this it is not meant that the judge has nothing to say 
about the law; he instructs the jury as to what the law is, 
and then the jury decide for themselves. 


SECTION IV. 

FREEDOM OF ASSEMBLY AND PETITION. 

The right of the people peaceably to assemble to consult for the commoi 
good, and to petition the government or any department thereof, shall 
never be abridged. 

I. The right of assembly. — In many countries, 
the government is afraid to let the people have political 
meetings or get up petitions for the redress of griev¬ 
ances. Here, any number of people may come together 
in any sort of societies, religious, social or political, or 
even in treasonable conspiracies, and, so long as they 
•behave themselves and do not hurt anybody or make 
any great disturbance, they may express themselves in 
public meetings by speeches and resolutions a a they 
-choose. 

II. The right of petition. — There are very few 
countries in which the government is so despotic that 
it refuses to receive petitions and to hear the complaints 
of its subjects or citizens. And ours being a free gov¬ 
ernment, of course gives this right to its citizens. 

If any person or persons wish to have the laws changed in 
any way, they have a right to petition the legislature for that 
change. The legislature must receive and listen to the peti¬ 
tion, and then it may make the change in the laws, or not, 
as the member? may see fit. So also with city councils and 
county, village, town and district boards. On all things that 
uure unde* their care, they must receive and listen to all pett* 


DECLARATION OF RIGHTS. 


Li: 


*>•>, 


tions that anybody chooses to send them; and then they may 
do aa they please about acting on them. So, also, for any¬ 
thing that is in charge of any executive or judicial officer. 
The governor must receive all petitions for pardon, but he can 
do as he chooses about granting the pardon. 


SECTION Y. 

TRIAL BY JURY. 

Hie right of trial by jury shall remain inviolate; and shall extend to all 

cases at law, without regard to the amount in controversy; but a jury 

trial may be waived by the parties in all cases, in the manner prescribed 

by law. 

Trial by jury is an ancient English custom that was 
meant to secure fair trials, so that the decision should 
not depend upon the judge alone, but also upon a num¬ 
ber of unprejudiced citizens. With the rest of the 
English common law, trial by jury was brought over 
to this country by the English colonists, and has been 
adopted in every state in our Union. The constitution 
therefore says that the right of trial by jury shall 
remain inviolate . 

A jury generally consists of twelve persons chosen in 
such a way that they shall be impartial. In suits be¬ 
fore a justice of the peace, the number is usually six. 
In any verdict of a jury all must agree. 

Under the United States constitution, trial by juiy is guar¬ 
anteed in all criminal cases (III, 8), and in all civil suits where 
the value in controversy shall exceed twenty dollars. (Amend¬ 
ment VII.) Under this section the right of trial by jury is 
extended to all cases at law. Equity cases are decided by the 
judge alone. 

A jury trial may be waived by a criminal when he pleads 
** guilty ” in open court. There is no need of a jury to estab¬ 
lish his guilt, since he has himself confessed it in a regular 
and lawful way. In criminal cases, the jurv can determine 



I: 6.] 


EXCESSIVE BAIL, Etc. 


23 


only the fact, and that is determined when the plea of 
“ guilty” is put in, and therefore no jury is needed to deter¬ 
mine it. 

In civil suits, a jury trial may be waived where both parties 
agree to it. In cases brought before a justice of the peace, 
the presumption is that a jury will not be wished, and the 
case will be tried without one unless either party call for a 
jury. In that case, the call cannot be denied, under this sec¬ 
tion of the constitution. In civil suits before a judge, the 
presumption is that a jury is wished, and the case will be 
tried before a jury unless both parties agree to waive it. 


SECTION VI. 

EXCESSIVE BAIL AND PUNISHMENT FORBIDDEN. 

Excessive bail shall not be required, nor shall excessive fines be imposed, 
nor cruel and unusual punishment be inflicted. 

This is copied, word for word, from the United States 
constitution (amendment VIII), with two trifling ex¬ 
ceptions that do not change the sense. 

I. Excessive bail. — Bail is the security given that 
a person arrested for any offense will appear in court 
and stand his trial when the time comes. When no 
bail is given, the person charged with the offense will 
be kept in jail till his trial comes off; not to punish 
him, for that is unlawful, under section 2, for he has 
not yet been “ duly convicted 11 of any crime, but to 
make sure that he will be on hand to be tried. Should 
a justice of the peace ask too great bail, the case can be 
carried before a circuit or county judge or a court com¬ 
missioner (VII, 23), on a writ of habeas corpus , and the 
bail be reduced by him, should he think it is excessive. 
If a circuit judge asks too great bail, the case could be 
earried in the same way before the supreme court. 


24 


DECLARATION OF RIGHTS. 


[I: 7. 


II. Excessive fines. — Fines and punishments are 
prescribed by law for each offense. The law prescribes 
the greatest and the least fine or other punishment, and 
(the court must not impose a greater punishment than the 
greatest, or a less one than the least prescribed by law. 
If the law, itself, should fix too severe a penalty, the 
judge could decide that the law is unconstitutional, and 
refuse to punish the offender so heavily. No such case, 
however, has yet arisen in this state. 

III. Cruel and unusual punishments. — Cruel and 
unusual punishments are understood to mean such pun¬ 
ishments as whipping, branding with a hot iron, maim¬ 
ing, torturing, burning at the stake, breaking on the 
wheel, drawing and quartering, and the like. These 
were, until a century or two ago, inflicted eveiy where; 
but have now been abolished in all civilized countries 


SECTION VII. 

RIGHTS OF ACCUSED PERSONS. 

In all criminal prosecutions, the accused shall enjoy the right to be heard 
by himself and counsel, to demand the nature and cause of the accusa¬ 
tion against him, to meet the witnesses face to face; to have compulsory 
process to compel the attendance of witnesses in his behalf; and in 
prosecutions by indictment or information, to a speedy public trial by 
an impartial jury of the county or district wherein the offense shall 
have been committed; which county or district shall have been pre¬ 
viously ascertained by law. 

I. Similar provisions in the United States con¬ 
stitution. — This section is like amendment VI to the 
United States constitution. The object is the same 
in both—to secure a fair trial to accused persons; but 
the particular means of doing that, though the same in 



«: 7.] 


RIGHTS OF ACCUSED PERSONS. 


25 


both, are arranged in a different order. The following 
is an analysis of either: 


Accused Persons 
Shah, Have a 
Fair Trial. ... 


1. By knowing of 


2. By having a 
trial. 


what they are accused. 

1. Speedy. 

2. Public. 

" 3. By an impartial Jury. 

4. In the district where the offense 
, was committed. 


' 1. By cross-examining the oppoe- 

3. By having fair ing witnesses. 

testimony- 2. By subpoeuaing their own wit¬ 

nesses. 

4. By being heard in person or by counsel. 


II. The right to have counsel. — Every person 
has a right to be his own lawyer, if he chooses. But 
most persons will always prefer to have a law} r er carry 
on the case for them, who is skilled in the technicalities 
of law, who knows how tilings are done in a court 
room, and who can talk. As the law used to be in 
England, an accused person was not allowed a lawyer, 
while the state had the best lawyers to plead the case 
against him. This section of the constitution prevents 
any such injustice. Every accused person can have a 
lawyer, if he chooses. If he is too poor to furnish one 
himself, the judge appoints one for him, who is paid 
by the county. And every accused person has also the 
right to speak for himself if he chooses, after the law¬ 
yers are through. 

III. To know the accusation. — An accused person 
always has a right to see the indictment against him, 
and to know for what offense he is to be tried, so that 
he may be prepared to defend himself as well as he can; 
and, if he is innocent, so that he can prove his inno¬ 
cence. 

IV. To cross-examine witnesses.— He has the right 
to meet the witnesses face to face, so that he or his law- 








26 


DECLARATION OF RIGHTS. 


[1: a. 


yer may cross-examine them to see whether they tell 
the truth or not. 

Y. The right to subpcena witnesses. — He may 
subpoena witnesses for himself, as the state can against 
him, so that if any one knows anything about a crime, 
he may be compelled to come into court and testify, so 
that the truth may be got at as near as may be. 

VI. The right to a speedy, public trial. — The 
trial for petty offenses, before a justice of the peace, 
comes as soon as possible. For graver crimes, the trial 
comes off at the next term of the circuit court, in the 
county, unless there is some good reason for putting 
it off. 

Trials are always public, and any one can be present 
who pleases. It is more likely that justice will be done 
in this way than if the trials were held privately. 

VII. The right to an impartial jury of the 
county or district. — An accused person cannot be 
taken to some other part of the state to be tried. If he 
chooses, he can demand a trial where the offense was 
committed. If he thinks that the judge is prejudiced, 
or that the whole county is prejudiced, so that he could 
not get an impartial jury, he can have a “change of 
venue ” to another county. 

SECTION VIII. 

rights of accused persons (continued). 

No person shall be held to answer for a criminal offense [unless on the pre¬ 
sentment or indictment of a grand jury, except in cases of impeach¬ 
ment, or in cases cognizable by justices of the peace, or arising in the 
army or navy, or in the militia when in actual service in time of war or 
public danger], without due process of law , and no person, for the same 
offense, shall be put twice in jeopardy of punishment, nor shall be 
compelled in any criminal case to be a witness against himself. *A11 
persons shall before conviction be bailable by sufficient sureties, except 


L: 8.J 


RIGHTS OF ACCUSED PERSONS. 


2T 


for capital offenses when the proof is evident or the presumption great; 
and the privilege of the writ of habeas corpus shall not be suspended 
unless when in cases of rebellion or invasion the public safety may 
require. 

I. This section amended. 

This section originally was taken from the United States 
constitution. (Amendment V, and art. I, sec. 9, clause 2.) It 
was amended in 1870 by striking out the words in brackets, 
and inserting in their place, the words “without due process 
of law.” The object of the amendment was to do away with 
the grand jury system. This is not in violation of these sec¬ 
tions of the United States constitution, for they apply only to 
cases arising under United States laws. 

II. Due process of law. — This means in all serious 
cases, not military, either a preliminary examination 
before a justice of the peace, or information laid before 
the district attorney. The object of this, as of the old 
way of indictment by a grand jury, is to prevent evil- 
disposed persons annoying innocent people with frivo¬ 
lous or groundless accusations. No person can be held 
to answer for a criminal charge, unless it can be shown 
that there is probable reason to suppose that he is 
guilty. 

Minor offenses may be tried before a justice of the 
peace or a police court, without a preliminary exami¬ 
nation. 

In time of war, martial law takes the place of civil 
law for all soldiers and sailors, and all people who live 
where the war is going on. When nations afe fighting, 
they cannot stop for the slow justice of peace. In time 
of peace, soldiers and sailors can be punished by the 
courts for all offenses against the laws; and also by their 
officers or by court martial, for all offenses against the 
army regulations. In such cases, martial or military law 
is considered “ due process of law.’' 



-28 


DECLARATION OF RIGHTS. 


[Is 8 

III. Not tried twice for the same offense.— 
No person can be tried twice for the same offense; but. 
if the jury disagree, he can be tried before a new jury. 
That is not another trial, but the same one continued. 
Or, the case may be carried to a higher court on an ap¬ 
peal, or a writ of certiorari or of error. In that case, 
too, it is not a new trial, but the same trial continued; 
though it is often called, improperly, a new trial. 

IV. Not compelled to testify against himself.— 
It is the custom in most countries to make accused 
persons testify against themselves, and formerly, when 
the accused did not answer the questions as the judge 
wished him to do, he could be tortured until he con¬ 
fessed all that he had done, and a great deal that he had 
not done. ' This injustice is prevented by this section. 
An accused person may plead guilty, if he chooses, and 
confess to as much as he wishes to, of the charge against 
him; but he is not compelled to say anything unless he 
wishes to. 

Under this section, also, a witness cannot be forced to 
answer any question which would criminate himself. 

V. Admitted to bail. — For a definition of bail, see 
page 23. 

Capital offenses are those which are punishable with 
death. As no crimes are now punished by death in this 
state, there are, of course, no capital offenses. 

VI. The privilege of the writ of habeas cor 
pus. — The writ of habeas corpus is a process by which 
any person unjustly confined, either by private persons 
or by public officers, can be set free, if he has a right to 
be free. Any person unjustly detained may sue out a 
writ of habeas corpus before any judge or court com¬ 
missioner. (VII, 23.) The person detained and the per¬ 
son detaining him are then brought immediately before 


1:9.] JUSTICE SHOULD BE FREE AND CERTAIN. 29 

the judge or court commissioner, the case is heard, and 
if the person held ought to be free, he is set free at once 
by the judge or court commissioner. 

In time of war and public danger it is often necessary, 
to arrest persons on suspicion, and hold them until 
proof of their crimes has been secured. In such cases 
the legislature must suspend the privilege of the writ 
of habeas corpus , and then the officers of the state can 
imprison any one they please without being liable to 
have their prisoners freed by a writ of habeas corpus. 

SECTION IX. 

JUSTICE SHOULD BE FREE AND CERTAIN. 

Every person is entitled to a certain remedy in the laws, for all injuries or 
wrongs he may receive in his person, property, or character; he ought 
to obtain justice freely, and without being obliged to purchase it, com¬ 
pletely and without denial, promptly and without delay, conformably 
to the laws. 

This is a statement of a truth which is only so much 
talk, except as it is carried out in the laws. This section 
has no more binding force than any other good advice 
has. But our statute books show that the legislature 
has tried to carry this out in good faith. There are very 
few wrongs to person, property or character, for which 
redress cannot be had under the laws of Wisconsin. 

Every person in the state can “ obtain justice freely and 
without being obliged to purchase it.” Any judge who should 
take a bribe would be removed from his office by impeach¬ 
ment (VII, 1) or by address (VII, 13), and be lined and im¬ 
prisoned beside. It costs nothing to prosecute for any crime. 
The state carries on all criminal suits in its own name and at 
its own cost; for they are “against the peace and dignity of 
the state of Wisconsin.” (VII, 17.) In civil suits, which are 
carried on for the benefit of private persons, each one must 


30 


DECLARATION OF RIGHTS. 


[1: 11. 


pay his lawyer, if he has any, and the party who loses must 
pay the costs of the suit. With these exceptions, justice costs 
nothing in Wisconsin. 


SECTION X. 

TREASON. 

Treason against the state shall only consist in levying war against the sam®, 
or in adhering to its enemies, giving them aid or comfort. No person 
shall be convicted of treason unless on the testimony of two witnesses 
to the same overt act, or on confession in open court. 

I. Origin of the section. — This section is taken 
directly from the Unitec? States constitution (art. Ill, 
sec. 3), putting the state in place of the United States. 

II. What is treason. — Under this section, any one 
may talk treason as much as he pleases, and may even 
conspire against the government, without being pun¬ 
ished for treason. Only open acts of war are counted 
treason. 

III. Proof required to convict of treason.— 
Two witnesses are required, because in times of civil 
war and rebellion party spirit rules so high that one 
witness might easily swear falsely, or exaggerate the 

truth. 

The confession must be in open court, so that it shall 
be the real confession of the accused, as he wishes to 
make it, and so that it shall be truly reported. 


SECTION XI 

SEARCHES and seizures. 

The right of the people to be secure in their persons, houses, papers ami 
effects, against unreasonable searches and seizures, shall not be violated, 
and no warrant shall issue but upon probable cause, supported by oath 
or affirmation, and particularly describing the place to be seuvched and 
the persons or things to be seized. 


1: 12.] BILLS OF ATTAINDER, Etc. 31 

This is copied from the United States constitution. 
(Amendment IV.) 

Under this section, the officers of the law cannot 
search any house and any place they please, to find 
stolen property. Some one must first swear out a search 
warrant, and show some reason to think the things 
wanted are there; and then the person or place can be 
legally searched — and not before. 


SECTION XII. 

BILLS OF ATTAINDER, ETC. 

No bill of attainder, ex post facto law, nor any law impairing the obligation 
of contracts, shall ever be passed; and no conviction shall work corrup¬ 
tion of blood or forfeiture of estate. 

I. The origin of this section. — The three things 
forbidden in the first half of this section are forbidden 
to every state by the United States constitution (art. 1, 
sec. 10), and are, therefore, forbidden in this state by 
double authority — that of the state constitution and 
that of the United States constitution. 

II. Bills of attainder forbidden. — A bill of at¬ 
tainder is a bill to punish a single person or a number 
of persons, named in the bill, without a regular trial. 

This was a very common thing in early English history, 
especially for political crimes. It would have been, for in¬ 
stance, a bill of attainder, if congress, after our civil war, had 
passed a bill against Jeff. Davis for treason, and sentenced him 
tn death without jury trial before a regular court. Such a 
thing is forbidden by this clause. 

III. Ex post facto laws forbidden. — An ex 'post 
facto law is one to punish, not only those who may 
afterward break it, but those who have already, before 

















32 


DECLARATION OF RIGHTS. 


[I: 1£ 


the law takes effect, done anything contrary to it; or a* 
law which adds a new punishment to former crimes. 

The supreme court has decided that this section of the United 
States constitution does not forbid all retrospective laws, but 
only in criminal cases. “An ex post facto law is one which 
renders an act punishable in a manner in which it was not 
punishable when it was committed.” 

For instance, a law to punish with death all murderers who- 
may be convicted of murders they have already done, would 
be ex post facto , because the punishment for that crime is now 
imprisonment in the state’s prison. But a law to hang all per¬ 
sons who are convicted of murder, done after the law goes into 
effect, would be perfectly constitutional. 

IV. The obligation of contracts not to be im¬ 
paired. — Contracts once made cannot be broken, un¬ 
less the persons who make the contract all agree ta 
break it. But the law can determine what shall be the 
conditions of a valid contract. 

For instance, a contract which is for an immoral pur¬ 
pose, or which involves an immoral consideration, is never 
valid, and may always be broken. A contract to sell coun¬ 
terfeit money, a contract to kill another person for so- 
much money, a bargain made by a judge to give a wrong de¬ 
cision, would none of them be binding contracts. The parties 
had no right to make them in the first place, and therefore can 
break them when they please. The obligation of these con¬ 
tracts is not impaired by the law annulling them; for they 
never had any obligation. The law can at any time fix the 
conditions of all future contracts, but it cannot impair the 
obligation of past contracts, provided they were legal when 
they were made. This provision of the constitution in civil 
cases, is like the proviso against ex post facto laws in. criminal 
cases. 

% 

V. Corruption of blood forbidden. — Corruption 
of blood is punishing children for the sins of their 
fathers. Under the English common law, when any one 



1: 14.J J^il^UDAli TllilN UKlilfci F UKblDDillN. JJJJ 

was convicted of treason, he forfeited all his property 
to the state, and his blood was considered corrupt; so 
that his children and other relatives could not inherit 
from him. His link in the chain of inheritance was 
broken, so that none could inherit property or titles or 
civil rights from him. This great injustice of punish¬ 
ing children for what their fathers have done, is abolished 
by this section. 


SECTION XIII. 

NO PROPERTY TAKEN WITHOUT COMPENSATION. 

The property of no person shall be taken for public use without just com¬ 
pensation therefor. 

The state has the right of eminent domain, and can 
take private property for public use whenever it chooses. 
This section provides that when private property is so 
taken, there shall always be just compensation given 
for it. 

\ 

SECTION XIV, 

FEUDAL TENURES FORBIDDEN. 

AH land 3 within the state are declared to be allodial, and feudal tenures are 
prohibited. Leases and grants of agricultural land, for a longer term 
than fifteen years, in which rent or service of any kind shall be reserved, 
and all fines and like restraints upon alienation, reserved in any grant of 
land hereafter made, are declared to be void. 

S 

I. All lands allodial.-— Allodial lands are those 
which are held by the owner without being subject to 
any feudal service or any tax or rent other than the tax 
levied by the government. Nearly all the land in the 
United States is allodial. 

II Feudal tenures forbidden. — Feudal tenure 
originally was military service; later, it came to mean 
any service or rent that is to be perpetual. 

3 


% 


84 


DECLARATION OF RIGHTS. 


[I: 14 


The time is limited for which farming land may be 
rented, because, otherwise, this section might have been 
evaded by leasing land for a very long period (for in¬ 
stance, for nine hundred and ninety-nine years, the term 
for which land has sometimes been leased in England). 
This section is restricted to agricultural lands, because 
land is frequently leased for building purposes for a 
longer time than fifteen years. 

III. Entails forbidden. — Fines and like restraints 
upon alienation are commonly called u entails,” and are 
frequently used in England to keep large estates to¬ 
gether after the death of the owner. 

IV. The object of this section. 

The object of this section is to prevent the growth of a 
landed aristocracy, such as is the curse of England to-day. 
To do this, feudal tenures and entails are both prohibited by 
this section. Primogeniture , or the right of the eldest son to 
inherit all the real estate with the title, has never been estab¬ 
lished in this country, and, probably, never will be. These 
three things, feudal tenures, entails, and primogeniture, are 
the three pillars of the English aristocracy. 

What we want in this country is, that the people who till 
the land should own the land; and that anybody who wants 
land may be able to get it by offering a fair price for it. The 
farmers in moderate circumstances, who work their farms 
themselves, are the backbone of any country. With them, 
Rome conquered the world; for lack of them, in later years, 
she lost it again. The honest yeomanry of England were her 
strength in former days; the lack of that class now is her 
greatest weakness. Slavery prevented the growth of such a 
class of independent farmers in the southern states, and made 
labor dishonorable, and was, therefore, the cause of the igno¬ 
rance and poverty of a large part of the whites as well as of 
the blacks. If we would be a nation of intelligent freemen, 
we must never allow the farming class to be divided into a 
haughty aristocracy and a degraded peasantry. That danger 
this section helps to guard against. 



I: 16.J IMPRISONMENT FOR DEBT FORBIDDEN. 35 


SECTION XV. 

PRIVILEGES OF RESIDENT ALIENS. 

No distinction shall ever be made by law between resident aliens and cit^ 
tens, in reference to the possession, enjoyment or descent of property. 

Aliens are foreigners who have not yet been natu al- 
ized. Resident aliens are such foreigners as live in the 
state. Only aliens needed to be thus protected by the 
state constitution, for citizens of other states living 
here are already guaranteed all the rights of citizens of 
this state by the United States constitution. (Art. IV, 
sec. 2.) Non-resident aliens are not protected in the 
holding of property by either constitution. No dis¬ 
crimination has, however, been made against them by 
law, and it is not likely that there ever will be. Any¬ 
body, citizen or foreigner, resident or non-resident, can 
Hold property in this state, under the same conditions. 

SECTION XVI. 

IMPRISONMENT FOR DEBT FORBIDDEN. 

No person shall be imprisoned for debt arising out of, or founded on a con¬ 
tract, expressed or implied. 

No person can be imprisoned for debt in this state, 
unless he has committed some fraud in regard to it. If 
he obtained property under false pretenses, he can be 
imprisoned; not for the debt, but for the fraud. For 
the debt, he must be sued in the ordinary way. So, if 
any one embezzles trust funds, whether he be a public 
officer, or a guardian, or a trustee of any corporation, 
he cannot be imprisoned for the debt, but may be for 
the embezzlement. 




DECLARATION OF RIGHT& 


[IS 1&. 


SECTION XYII, 

EXEMPTION LAW. 

The privilege of the debtor to enjoy the necessary comforts of life shall be 
recognized by wholesome laws, exempting a reasonable amount of 
property from seizure or sale for the payment of any debt or liability 
hereafter contracted. 

Under this section the legislature has passed very lib¬ 
eral exemption laws. These laws exempt a homestead 
of forty acres of land, or a village or city lot, with the 
buildings on it, provisions for a year for the family, the 
necessary tools for a mechanic, the library of a profes¬ 
sional man, and a great variety of things, toe numerous 
to mention. 


SECTION XVIII. 

RELIGIOUS FREEDOM. 

The right of every man to worship Almighty God according to the dictate* 
of his own conscience shall never be infringed, nor shall any man be 
compelled to attend, erect or support any place of worship, or to main¬ 
tain any ministry, against his consent. Nor shall any control of 01 
interference with the rights of conscience be permitted, or any prefer¬ 
ence be given by law to any religious establishments or mode of worship. 
Nor shall any money be drawn from the treasury for the benefit of 
religious societies, or religious or theological seminaries. 

I. The right to worship in our own way. — One 
of the greatest evils of every European country is pre¬ 
vented by this section. 

There is complete religious freedom here. Any one 
may believe and teach whatever he pleases, so long as 
he does not do anything that interferes with other 
people’s rights. 

For instance, any one may believe and teach the doctrine of 
the Thugs of India; that it is pleasing to their goddess to have 
them rob and murder travelers. We should have a right to 
think and to say that it is a very wicked religion; but we could 


1 : 19.] NO RELIGIOUS TESTS FOR OFFICE. 


37 


not punish any one by law for believing and teaching it. But 
let one try to put it in practice by actually robbing and mur¬ 
dering some one, and he can be arrested, tried and punished; 
not for his wicked belief, but for his wicked actions. So, the 
Mormons may believe in polygamy, and preach it in this state, 
without any legal punishment. But if one of them should 
try to put his belief in practice in this state, by marrying two 
or three wives, he would be punished; not as a Mormon, but 
as a bigamist. 

II. NO APPROPRIATION'S TO RELIGIOUS BODIES. — No 
church can be established by law as the state church, 
nor can any church be founded with appropriations 
from the treasury. All churches in this state are sup¬ 
ported by voluntary contributions. Experience has 
shown that churches are better and purer when not 
aided or controlled by the state in any way, and that 
when not so aided, the money can be raised for their 
support by voluntary contributions. 

SECTION XIX. 

NO RELIGIOUS TESTS FOR OFFICE. 

fNo religious tests shall ever be required as a qualification for any office of 
public trust, under the state, and no person shall be rendered incompe¬ 
tent to give evidence in any court of law or equity, in consequence of 
bis opinions on the subject of religion. 

Religious tests have been a great evil in Europe. 
They are prohibited here. Any person who is other¬ 
wise qualified, may hold any office in the state, no mat¬ 
ter what his religious opinions may be. And no person 
can be prevented from testifying in any court because 
of his religious opinions. If the members of certain 
religious bodies were not allowed to testify, it would be 
as much as to say that they could not be believed 
under oath; which would be an unjust stigma to fix on 
any form of religious faith. 


DECLARATION OF RIGHTS. 


[I: 22, 


88 


SECTION XX 

MILITARY SUBORDINATION. 

The military shall be in strict subordination to the civil power 

We wish to guard against a military despotism in 
this country. We do not wish to have a successful 
general seize the government with the help of his army; 
and we do not intend ever to give him a chance to do it. 

The militia of this state is under the command of the gov¬ 
ernor, who is commander-in-chief; and is raised or disbanded 
at the pleasure of the legislature. Soldiers are responsible to 
their officers, they to their superiors, and they to the governor,, 
as commander-in-chief. Should he misuse his office, he cart 
be impeached and removed; so that by this means the military 
is subordinate to the civil power. 

SECTION XXL 

WRITS OF ERROR. 

Writs of error shall never be prohibited by law. 

After any criminal case or civil suit has been decided, 
if the decision is* wrong by reason of any informality 
in the proceedings, or a wrong decision in regard to the 
law, it can be corrected by a “ writ of error,” which 
carries it up to a higher court, where, if the decision is- 
wrong, a new trial will be ordered. 

SECTION XXII. 

SOME GOOD ADVICE. 

The blessings of a free government can only be maintained by a Arm ad¬ 
herence to justice, moderation, temperance, frugality and virtue, and? 

by frequent recurrence to fundamental principles. 

Of course this has no binding force. It is only & 
recommendation, which the people can follow or not as» 



I: xx.j 


SOME GOOD ADVICE. 


39 


they please. We cannot make people good by law. We 
can only stop them from doing anything very bad; hut' 
though we cannot make people virtuous by law, we 
need to have them so, to have the laws amount to any¬ 
thing. In this country the people make the men who 
make the laws, and the men who enforce the laws. Our 
free government depends upon the people, who can 
make it a blessing or a curse, according as they are 
themselves intelligent, upright and virtuous, or the op¬ 
posite. It will do no good to write this constitution 
on paper, unless the people of Wisconsin are them¬ 
selves, as expressed in this twenty-second section, ju 
moderate, temperate, frug . 1 and virtuous; and unless 
they know the principles on which our government is 
founded. That they may know these principles, the 
legislature has wisely decided that this constitution 
shall be taught in our common schools; and it ought 
to be taught so that the scholars shall not only know 
the words, but so that they shall understand its princi¬ 
ples, and know the reasons for them. 

Aristotle said, two thousand years ago: “But whosoever 
endeavors to establish wholesome laws in a state, attends to 
the virtues and vices of each individual who composes it; and 
hence it is evident that the first care of a man who would 
found a state, truly deserving that name, and not nominally 
bo, must be to have his citizens virtuous; for, otherwise, it is 
merely an alliance for mutual defense.” 

He also said: “That which contributes most to preserve 
the state is to educate children with reference to the state; for 
the most useful laws, and most approved by every statesman, 
will be of no service, if the citizens are not accustomed to 
and brought up in the principles of the constitution. 





I 


40 BOUNDARIES AND JURISDICTION [U 












ARTICLE II. 


BOUNDARIES AND JURISDICTION. 


“ I hear the tread of pioneers. 

Of nations yet to be; 

The first low wash of waves, where soon 
Shall roll a human sea. 

“ The rudiments of empire here 
Are plastic yet, and warm; 

The chaos of a mighty world 
Is rounding into form. 

“ Each rude and jostling fragment sood 
Its fitting place shall find; 

The new material of a state, 

Its muscle and its mind.”— Whittier. 


Articles II and IX logically belong together, as both treat of 
the jurisdiction of the state. The subject of the jurisdiction 
of the state comes naturally before that of the forms and pow¬ 
ers of the state government, of which the articles that follow 
treat, because we first wish to know what is to be governed, 
before we know liow it is to be governed. The analysis of ar¬ 
ticles II and IX is, therefore, given in this place, and given as 
if they were one article, as they might better have been. But 
the text and comments upon article IX are given in their 
place under that article: 


Jurisdiction of 
the State. 


2. Restrictions on 
state juris¬ 
diction. 


r 2 


1. Boundaries... Article n, Section 1 

1. No interference with United 

States titles. 

2. No tax on United States 

land. 

3. No unequal tax on any non¬ 
resident owners. 

Article IX. Section 

1. Concurrent on lakes and 
rivers that bound the state 

2. All streams free highways. 

3. Sta te succeeds to the prop¬ 

erty of the territory of 
Wisconsin. 

4. State has the right of emi¬ 
nent domain. 


Extent of 
diction . 


juris- 


1 















Or 1.] 


BOUNDARIES. 


41 


SECTION I. 

BOUNDARIES. 

2^ ^ hereby ordained and declared that the state of Wisconsin doth consent 
and accept of the boundaries prescribed in the act of congress entitled 
“ An act to enable the people of Wisconsin territory to form a constitu¬ 
tion and state government, and for the admission of such state into the 
Union,” approved August sixth, one thousand eight hundred and forty- 
six, to wit: beginning at the northeast corner of the state of Illinois, 
that is to say, at a point in the center of Lake Michigan where the line of 
forty-two degrees and thirty minutes of north latitude crosses the same; 
thence, running with the boundary of the state of Michigan, through 
Lake Michigan, Green Bay, to the mouth of the Menomonee river; thence 
up the channel of the said river to the Brule river; thence up said last 
mentioned river to Lake Brule; thence along the southern shore of Lake 
Brule, in a direct line to the center of the channel between Middle and 
South Islands, in the Lake of the Desert; thence in a direct line to the 
head waters of the Montreal river, as marked upon the survey made by 
Captain Cram; thence down the main channel of the Montreal river to 
the middle of Lake Superior; thence through the center of Lake Superior 
to the mouth of the St. Louis river; thence up the main channel of said 
river to the first rapids in the same, above the Indian village, according 
to Nicollet’s map; thence due south to the main branch of the river St. 
Croix; thence down the main channel of said river to the Mississippi; 
thence down the center of the main channel of that river to the north¬ 
west corner of the state of Illinois; thence due east with the northern 
boundary of the state of Illinois, to the place of beginning, as estab¬ 
lished by “ An act to enable the people of the Illinois territory to form 
a constitution and state government, and for the admission of such state 
into the Union on an equal footing with the original states,” approved 
April eighteenth, one thousand eight hundred and eighteen. [ Provided , 
however , that the following alteration of the aforesaid boundary be, and 
hereby is, proposed to the congress of the United States as the prefer¬ 
ence of the state of Wisconsin, and if the same shall be assented and 
agreed to by the congress of the United States, then the same shall be 
and forever remain obligatory on the state of Wisconsin, viz.: leaving 
the aforesaid boundary line at the foot of the rapids of the St. Louis 

river; thence in a direct line bearing southwesterly, to the mouth of the 

' • 

Iskodewabo or Rum river, w here tne same empties into the Mississippi 
river; thence down the main channel of the said Mississippi river, as 
prescribed in the aforesaid boundary.] 

* The above alteration of the boundary w r as proposed to congress at the 
time this constitution was adopted, but as congress did not consent to the 
change, it could not be made; and the words, in brackets are not a pan. of 
the state constitution. They are, however, usually given in the published 
copies of the constitution, and they are, therefore, given here as a matter 
®f history. 




42 


BOUNDARIES AND JURISDICTION. [II: 1. 


I. How the boundary can be changed. — These are 
now the boundaries of the state of Wisconsin. It is 
not likely that they ever will be changed; for, in order 
to change them, it is not enough for us to wish them 
changed; congress must also consent to the change, and 
so must the legislature of the other state or states con¬ 
cerned. For instance, if we would wish to have that 
part of Michigan that lies between Lake Superior and 
Lake Michigan annexed to this state, we mus^ get the 
consent of the legislature of Michigan, and of congress, 
as well as of our own legislature. Should any such 
change be made, it would be, really, an amendment to 
this section; hut it would not need to be formally 
amended in any of the ways prescribed by article XII. 
Under the United States constitution (IV, 3), the con¬ 
sent of the legislatures of the states concerned, and of 
congress, is enough. That would of itself amend this 
section, without any further action by the state of 
Wisconsin. 

II. Water boundaries not the true ones. — The 
boundary of Wisconsin is commonly given as Lake Su¬ 
perior and the state of Michigan on the north, and 
Michigan and Lake Michigan on the east, and sometimes, 
also, the Mississippi river is given as part of the western 
boundary. These boundaries ‘are not the true ones. 
The state of Wisconsin extends to the center of Lakes 
Michigan and Superior; and to the center of the main 
channel of the Mississippi river. As the states of Wis¬ 
consin and Michigan meet in the center of Lake Michi¬ 
gan, it is not Lake Michigan that bounds Wisconsin on 
the east, but the state of Michigan, and so on. The 
correct boundary of Wisconsin in general terms, is as 
follows: Wisconsin is bounded north by Minnesota and 


II: 2.] RESTRICTIONS ON STATE JURISDICTION. 43 


Michigan, east by Michigan, south by Illinois, and west 
by Iowa and Minnesota. 

III. The boundaries narrower than originally 

INTENDED. 

Wisconsin being the last of the five states organized out of 
the Northwest Territory, received less territory than was orig¬ 
inally intended. In the original plan for organizing that terri¬ 
tory into five states. Wisconsin was to have Cor its southern 
boundary a line drawn due west from the southern end of 
Lake Michigan, including what is now the great city of Chi¬ 
cago, and the best part of northern Illinois. She was to have 
what is now the northern peninsula of Michigan, and was to 
have the Mississippi instead of the St. Croix for the northern 
part of its western boundary. But one large and fertile tract 
of land was given to Illinois, another to Michigan, and still 
another was secured for what is now Minnesota, against the 
protest of the infant state. Enough, however, was left for a 
fair and fertile state. 


SECTION II. 

RESTRICTIONS ON STATE JURISDICTION. 

rhe propositions contained in the act of congress are hereby accepted, rati¬ 
fied and confirmed, and shall remain irrevocable without the consent of 
the United States; and it is hereby ordained that this state shall never 
interfere with the primary’ disposition of the soil within the same by the 
United States, nor with any regulations congress may find necessary for 
securing the title in such soil-to bona fide purchasers thereof; and no 
tax shall be imposed on land the property of the United States; and in no 
case shall non-resident proprietors be taxed higher than residents. Pro 
vidcd , that nothing in this constitution, or in the act of congress aforesaid, 
shall in any manner prejudice oralfecttlie right of the state of Wisconsin, 
to five hundred thousand acres of land granted to said state, and to be 
hereafter selected and located, by and under the act of congress, en¬ 
titled “ An act to appropriate the proceeds of sales of the public lands, 
and grant pre-emption rights,” approved September fourth, one thou¬ 
sand eight hundred and forty-one. 

This section can be amended in either of the ways 
prescribed in article XII, if the consent of congress is 
also obtained, but not otherwise. 


44 


BOUNDARIES AND JURISDICTION. 


[II: 2. 


I. The title to land. — The title to land is of great 
importance, and in all civilized countries great pains 
are taken to make the titles to land secure. The United 
States has sold, or is still offering for sale, the greater 
part of the land in the state. Its patents for land are 
really warranty deeds. The United States guarantees 
to the purchaser a clear title to the lands. Now, to 
avoid all trouble, and to make the title perfectly sure, 
congress provides that the state shall never interfere 
with titles to land derived from the United States. 
Otherwise, it is possible that the state might at some 
future time have claimed that, when the United States 
ceded the territory to the new state of Wisconsin, they 
ceded also the right to dispose of those titles. This is 
now forbidden by the law of congress and b} r this'sec¬ 
tion of our constitution. It is a fact, however, that 
our ’legislature, like those of several other states, has 
tried to regulate the United States surve 3 r s, and correct 
the errors in them. These laws were, of course, uncon¬ 
stitutional, and have now been repealed. 

The titles to land in the state of Wisconsin all either come 
from the United States or are indorsed by the United States. 
The Indians were the original owners of the soil. But when 
America was discovered by Europeans, they held the Indians’ 
ownership of little account. As between themselves, they 
finally determined that the nation which first discovered a 
tract of country should have the title to it, provided that the 
discovery was followed up by occupancy within some reason¬ 
able time. European nations had already recognized the fact 
-that a title to land may be acquired by conquest in w r ar, or by 
peaceful purchase. So that various nations gained title to 
land in America in some one or other of these three ways: 

1. Discovery, followed by occupation. 

2 . Conquest. 

3. Purchase, or voluntary cession. 

It would be interesting to trace out the different nations in 


II: 2.] RESTRICTIONS ON STATE JURISDICTION. 45 

which the sovereign power over some part of the United 
States has been at some time vested, and the various processes 
by which the sovereign power, and with it the original title 
to land, and the right of eminent domain, has passed from 
one nation to another. But we can only take up now our own 
state. 

The original title to land in Wisconsin belonged, of course, 
to the Indians, so far as savages can be said to have a title to 
land they do not use to any valuable purpose. This title was, 
however, disregarded by France, which claimed under the 
discoveries of Marquette and Joliet, and the settlements made 
soon after at Green Bay and Prairie du Chien. In the great 
war known in American history as the Old French War, 
France was beaten, and paid the costs of the war by ceding 
all her possessions in America to England. This included 
what is now Wisconsin. After the Revolutionary War, Eng¬ 
land in like manner ceded what is now Wisconsin to the new 
nation which had conquered its freedom. When the United 
States admitted Wisconsin to the Union, she was admitted as 
a sovereign state; and the United States gave to Wisconsin, by 
the act admitting her to the Union, the sovereign title to the 
land, with certain restrictions, which are embodied in this sec¬ 
tion of our constitution. Without counting the Indians, the 
territory embraced in what is now the state of Wisconsin has 
passed through the following hands: 

1 . France, by discovery and settlement. 

2. England, by conquest. 

3. The United States, by conquest. 

4. The state of Wisconsin, by peaceable cession. 

Now, at every change of sovereignty, the rights of private 
owners of land have been carefully guarded. 

There was no private ownership among the Indians. 

A few patents for land were issued by the French govern¬ 
ment, and the rights of owners under them were guaranteed 
by the treaty of cession from France to England. A like 
guaranty was made in the treaty of cession from England to 
the United States, and a like guaranty is given in the act of 
congress admitting Wisconsin to the Union, and confirmed by 
the clause in this section forbidding interference with United 
States titles to land. 


46 BOUNDARIES AND JURISDICTION. [II. 2. 

\ 

The original title to all the land in Wisconsin thus depends 
upon the guaranty of the United States. Every person who 
owns a foot of land in Wisconsin obtained it either from the 
6 tate or United States, or from some person or series of per¬ 
sons, the first of whom received it from the state, the United 
States, England or France. It is therefore the interest of 
every person who owns land to defend the government which 
guarantees him possession of it. 

III. United States land not taxed. — Of course 
it would not be fair to tax the land that belongs to the 
United States; for the government is holding it for the 
general good, and not to make any profit out of it. 
Therefore congress provided, and the state agreed, that 
the United States land should never be taxed. 

IV. No higher taxation for non-residents.— 
The clause that prevents the state from taxing non- 
resident proprietors higher than residents is put in be¬ 
cause that would be a way of interfering with the title 
to property. The state could easily, were it not for 
this clause, tax non-resident proprietors so high that 
they would sell out cheap, or let their land be sold for 
taxes. 

V. School land. — For more about the five hun¬ 
dred thousand acres of land, see art. X, sec. 2. This 
land was given to the state by the United States, for 
the benefit of common schools, and the proceeds of its 
sale form a large part of the school fund of the state. 


SUFFRAGE. 


47 


SLLLJ 


ARTICLE III. 

SUFFRAGE. 


“ Not lightly fall 
Beyond recall 

The written scrolls a breath can float; 

The crowning fact, 

The kingliest act 

Of freedom is the freeman’s vote.”—W hittikh 


1. Male. 

2. Twenty-one years old 

3. One year a resident .. 


See. 


Q U A LI FICATIONS 

of Voters. 


Classes Spe¬ 
cially Dis¬ 
qualified. 


4. Must be either 


a. Citizen. 

b. Foreigner who has de- I- 1 
dared his intention .... 

c. Indian made citizen by 

congress; or. 

d. Civilized Indian. 

1. Idiots and insane persons. S 

2. Convicts, unless restored to civil rights . 2 

3. United States soldiers and sailors stationed here . 5 

4. But not persons absent on state or United States 

business. 4 

5. Those who have bet on any election are disquali¬ 

fied for that election. 6 

6. Duelists. XIII, 2 


Hanker of Voting 


3 


The following additional restrictions upon suffrage, in 
regard to the eligibility of the candidate for office and the 
time of elections, are added to the analysis of this article, to 
complete the subject: 


Eligibility 


{ Voters. j 

Citizens of United States, >VH, 10 
Twenty-five years old.... J 

{ Voters. . 

Citizens of United t V, 2 

States.J 

( Voters.j 

Residents of their > IV, 6 

districts. J 



























48 


SUFFRAGE. 


[TIL 


Eligibility 


Tuck of Voting. 


Ineligible. 


At general elec¬ 
tion biennially. 


State officers must be voters*.VI, 1 

County, town and district officers must be vot¬ 
ers* (except school officers).VI, 4 

Sheriffs (for re-election)- VI, 4 

Members of congress .. 

United States officers .. 

Offi’rsof foreign powers. ^.XIH, $ 

Criminals. 

Defaulters. 

For assemblymen and sen 

ators. IV, 4 

For governor and lieuten¬ 
ant governor. V, 8 

For state officers. VI, 1 

For county officers. VI, 4 

For town, village and city 

officers (by law). 

For judges. VU,i- 


At spring 
tion. 


elec- 


THE TWO PROCESSES OF REPRESENTATION. 


I. Our work thus far. — We have considered in the 
first two articles: 1 . What the governing is for — to 
secure certain inherent rights to the people of Wiscon¬ 
sin; and 2. What is to he governed — all the land and 
the people upon it within fixed boundaries. 

We now come to the main body of the constitution: 
How the government is to he carried on; and shall pro¬ 
ceed to study the machinery of the state government in 
the order given in the constitution. 

II. Our government a representative democ¬ 
racy. — Our government is a democracy, or a rule of the 
people; but it is a representative democracy. The peo¬ 
ple rule, but they do not make or execute the laws 
directly. 

The people of Wisconsin cannot all leave their business and 
travel, some of them a long way, so as to get together in one 
place and make the laws. Even if they could do this, there 

* The constitution does not state the qualifications of the administrative 
officers of the state and of county officers. The supreme court has decided 
that in such cases it is to be presumed that any voter could be elected to 
these offices. Women are made eligible to school offices bj r statute law. 





















III.] 


SUFFRAGE. 


49 


would be too many of them to do the business of making laws, in 
any orderly way. And even if they made the laws, they would 
have to choose somebody to see that the laws were obeyed. It 
is impossible for the people all to get together in mass meeting 
and vote what they want done, and then do it. They must 
choose some one to make laws for them, and to execute those 
laws: that is, to represent the people. 

The form of every law, as prescribed by article IV, section 
17. is: “ The people of the state of Wisconsin, represented in 
senate and assembly, do enact as follows.” Our government 
is a representative government. It is not a pure democracy, 
nor, from the nature of the case, can it be. 

III. The first process of representation. — The 
first process of representation is, that the men over 
twenty-one years of age (with some few exceptions) 
represent the women and children and vote for them. 

This is not because women and children are not citizens; 
they are citizens, as we shall soon see. It is not because this 
government is an aristocracy of men, who rule the women and 
children against their will. The men do, on the average, fairly 
represent the women and children. Some men do not fairly 
represent the women and children of their own families; but 
most of them do. And the proof that they do is, that the 
mass of women neither rebel or petition against being repre¬ 
sented by the men; and do not wish to vote. 

Some women are not satisfied with this process of represent¬ 
ation, and are constantly at work to secure a change in this 
first process of representation, so that women shall represent 
themselves by voting, instead of being represented at the bal¬ 
lot box by the men. It is possible that some day they may 
succeed in carrying woman suffrage. In that case, the men 
and women together would represent the children. 

IV. The second process of representation. — The 
seconu process of representation is that the voters 
choose some of their own numbers to make the laws 

and others to execute them. 

4 


50 


SUFFRAGE. 


[IH: 1. 


This they do by meeting on election day in their own town, 
or village, or ward of a city, and each placing in a ballot box , 
slips of paper, printed or written, with the names of the per¬ 
son each one wishes to have fill such and such offices. These 
candidates for office are usually selected by caucuses and con¬ 
ventions of the political parties some time before election day. 
But there is nothing to prevent any one putting himself for¬ 
ward as an independent candidate, which is frequently done. 
And there is nothing to prevent any voter scratching off any 
name on the ticket he wishes to vote, and either leaving it 
blank or putting some other name in its place. The voting is 
all done on one day, and the votes are then counted by the 
proper officers, and the result announced. 


SECTION I. 

QUALIFICATION’S OF VOTERS. 

Every male person of the age of twenty-one years or upwards, belonging 
to either of the following classes, who shall have resided in the state for 
one year next preceding any election, and in the election district where 
he offers to vote such time as may be prescribed by the legislature , not 
exceeding thirty days, shall be deemed a qualified elector at such elec¬ 
tion: 

1. [White] citizens of the United States. 

2. [White] persons of foreign birth, who shall have declared their in 
tention to become citizens, conformably to the laws of the United 
States on the subject of naturalization. 

3. Persons of Indian blood, who have once been declared by law ot 
congress to be citizens of the United States, any subsequent law of con¬ 
gress to the contrary notwithstanding. 

4. Civilized persons of Indian descent, not members of any tribe. 

Provided, that the legislature may, at any time, extend by law the 

right of suffrage to persons not herein enumerated; but no such law 
Shall be in force until the same shall have been submitted to a vote of 
the people at a general election, and approved by a majority of ali 
the votes cast at such election. 

And provided further , that in incorporated cities and villages , the 
legislature may provide for the registration of electors, and prescribe 
proper rules and regulations therefor. 

I. The amendment to this section. 

This article was amended at the general election in 1882, oy 
inserting the words in italics, and striking out the words in 


Ill: 1.] 


QUALIFICATIONS OF VOTERS. 


51 


brackets. The word “white” was struck out because negroe# 
are now voters, and this word is a survival from the time be¬ 
fore the civil war, when negroes did not vote. It is now 
struck out to correspond with the real facts. 

Two provisions were added, one requiring of a voter some 
Jays’ residence in the election district where he offers to vote, 
and the other providing for registration of voters in cities an 
villages. 


II. Classes oe persons given tiie privilege of 
voting. — The following four qualifications are required 
of all voters: 

1. Male sex: This shuts out women. 

2. Ticenty-one years of aye: This shuts out children. 
The exact age of twenty-one was taken because it is 
the age in England and America when a hoy becomes 
legally a man. 

3. One years’ residence in the state: This shuts out 
new comers from other states or from foreign countries, 
till they have had time to get some acquaintance with 
our laws and government. 

4. Some days' residence in the election district: To 
prevent persons voting where they do not have any real 
residence. 

A voter must also belong to one or the other of the 
following classes of persons: 

1. He must be a citizen of the United States, which 
may be either by birth or naturalization. 

2. Or he must be a foreigner who has taken out his 
“ first papers.” 

3. Or if he is an Indian, he must be a civilized 
Indian, or a member of a tribe once declared civilized 
by congress, no matter whether they are so now or not. 

A voter must have all the first four qualifications, 
and some one of the other three. 


52 


SUFFRAGE. 


[Ill: l\ 


III. Foreigners vote before they are citizens.— 
Under this section of oar constitution, persons of for¬ 
eign birth coming here may vote on the same terms as- 
citizens, after taking out a paper declaring their inten¬ 
tion to become citizens of the United States, which can 
be done at any time. In most states foreigners must be¬ 
come naturalized in order to vote; but it is not so here. 

Such voters, who have only declared their intention 
to become citizens, are eligible to all town and county 
offices, and to all state offices, except governor, lieuten¬ 
ant governor, and judge of the supreme or circuit 
courts. 

IV. Registration of voters. — The registration of 
voters is done by preparing a list of voters in the vil¬ 
lage or in the ward of a city, some time before election 
day, and publishing that list for corrections. Persons 
not on that list can only vote by proving that they are 
voters. This is intended to prevent persons voting who 
are not entitled to do so. Such frauds are much more 
likely to occur in cities and villages than in the country,, 
where everybody is known to all his neighbors. 

V. Extension of the suffrage. — The provision for 
extending the suffrage by a law ratified by a vote of the 
people, was intended to cover the case of negroes. The 
suffrage was actually extended to them under this pro¬ 
vision of the constitution. Under this provision women, 
were given in 1886, the ri ht to vote at school elections 

CITIZENSHIP 

I. United States citizenship. — This subject is de¬ 
termined by the United States constitution (amend¬ 
ment XIV) and by international law. 

Any person is a citizen of the United States who is 
born in this country, or has been naturalized here, and' 


Ill: 1.] 


CITIZENSHIP. 


53 


does not become a citizen of some other nation after¬ 
ward. A child born to a foreign ambassador, or to any 
.oreigner living here for a short time only, would not be 
•considered a citizen, unless he chose so to be. So, also, 
the children of our ambassadors, and other citizens who 
live in foreign countries for a time, would be citizens of 
the United States, notwithstanding the fact that they 
were born abroad. Women and children are citizens as 
well as men. Negroes are citizens as well as white 
people. But uncivilized Indians are not citizens; be¬ 
cause they are not governed by our laws, nor protected 
by our flag as negroes are, and as women and children 
are. A citizen of the United States is alwa} r s a citizen 
of any state he or she may live in. 

If a person who is not a citizen wishes to become one, 
be must first u declare his intention” before the clerk of 
a circuit court, or of a United States district court. 
This he can do at any time. When he has lived five 
years in this country, he can be naturalized, that is, 
made a citizen, provided he has “declared his intention 11 
at least two years before. When a man who has a fam¬ 
ily is naturalized, that makes his wife and all his chil¬ 
dren who are less than twenty-one years old, also 
citizens. A woman can also become a citizen in the 
same way a man can; but that does not give her the 
•right to vote. 

II. State citizenship. — State citizenship is not ex¬ 
actly the same as United States citizenship. There are 
four classes of citizens of the state of Wisconsin: 

1. Native born citizens of the United States, of all 
to-es and both sexes, who reside in the state, whether 
whites, negroes or Indians. 

2. Naturalized citizens who reside in the state, in¬ 
cluding the families of men who have been naturaliz vi, 
«and including Indians made citizens by act of congj jss. 


64 


bbWKAGE. 


[Ill: 2. 


8. Foreigners who have declared their intentions to* 
become citizens of the United States, and who are oth¬ 
erwise qualified to vote, but not their families. Thi® 
class are citizens of the state, but not of the United 
States. 

4. Indians who have once been made citizens by act 
of congress, notwithstanding any repeal of that act. 
This was meant to app’y to the Stockbridge Indians,, 
who were al 1 at one time partly civilized, and were there¬ 
fore made citizens by act of congress. A part of them 
afterwards wished to go back to their savage state 
again, and be governed by their old tribal customs, in¬ 
stead of by the state laws; and an act of congress was* 
passed to that effect. When tins constitution was 
framed, this clause was inserted, so + hat these Stock- 
bridge Indians could vote, just as if the} were civilized. 

These last two classes of persons are citizen:) of the 
state, but not of the United States. They are citizens 
of the state; because they are voters. The supreme 
court has, however, decided that this privilege is to be 
construed strictly, and do°s not include their families. 
The sons of a foreigner, who has declared his intention, 
to become a citizen of the United States, unless they 
were born in this country, are not voters until they' 
ave themselves taken out their first papers, after they 
me of age. Neglect or ignorance of this point of 
has caused much trouble. 

SECTION II. 

DISQUALIFICATIONS FOR VOTING. 

Ko person under guardianship, non compos mentis , or insane, shall be quaT 
fled to vote at any election; nor shall any person convicted of treason oj 
felony be qualified to vote at any election unless restored to civil rights. 

I. Persons under guardianship. — A person may 
be placed under guardianship when it is evident that he* 


Ill: 3.] 


VOTING BY HALLUi. 


55 


cannot take care of himself — either because of con¬ 
tinual drunkenness, or idiocy or insanity. 

Non compos mentis means “ of unsound mind”—an 
idiot or an insane person. 

It is plain that persons who cannot take care of them¬ 
selves cannot help to govern the state; and, therefore, 
ought not to vote. 

11. Traitors and felons. — Felony means, under 
our law, any state’s prison offense. A traitor to our 
state or nation, of course, ought not to help govern it; 
nor should a person who is so bad that he must be sent 
to state’s prison; therefore, traitors and felons are not 
allowed to vote. Such persons may be restored to civil 
rights either by special act of the legislature or by the 
governor’s pardon. It is usual, when convicts have be¬ 
haved well in prison, to pardon them out a few days be¬ 
fore their term is out, so as to restore them thereby to 
civil rights; for a pardon puts a convict back, in the 
eyes of the law, where he was before his offense. (V, 6.) 


SECTION III. 

VOTING BT BALLOT. 

All votes shall be fciven by ballot, except for such township officers as may 
by law be directed or allowed to be otherwise chosen. 

All votes are now given by ballot, except for over¬ 
seers of highways. The reason for voting by ballot is 
that it gives an opportunity for secrecy, and therefore 
for a more independent vote. Voters need not tell how 
they vote unless they wish to do so. 


5 Q SUFFRAGE. [Ill; 4, &. 

SECTIONS IY AND Y. 

QUESTIONS OF RESIDENCE. 

No person shall be deemed to have lost his residence in this state by reason 
of his absence on business of the United States or of this state. 

No soldier, seaman or marine, in the army or navy of the United States, 
shall be deemed a resident of this state in consequence of being sta¬ 
tioned within the same. 

I. How residence not lost. — If it were not for this 
proviso in the constitution, a United States officer, or a 
soldier, or a sailor, would lose his residence in this state 
while he was absent on United States business, and 
would have to live a year in the state when he came 
back, before he could vote. 

Under this section, every year, many United States officers 
come back from Washington or elsewhere to vote. Daring 
our civil war, a great many persons were absent from the 
state on business of the United States in the army, and they 
could not be spared to come home and vote; and so a law was 
passed to give the soldiers a chance to vote without coming 
home. Voting places were established in every Wisconsin 
regiment and battery, and the soldiers’ votes were sent to 
Madison and counted with the rest. Usually, however, per¬ 
sons absent from the state on public business must come home 
if they wish to vote. The state cannot set up a voting place 
wherever two or three persons happen to be, who could vote 
under this section. 

II. How residence not gained. — This lias the same 
reason in it as the last section. Soldiers, sailors or ma¬ 
rines are citizens, not of the state where they happen 
to be stationed for the time, but of the state of which 
they were citizens when they entered the United States 
service. If they vote anywhere, they must vote there. 
One who is a citizen of this state, however, can vote 
here, under the last section. 


^U: 6.] 


OTHER DISQUALIFICATIONS. 


67 


SECTION VI. 

OTHER DISQUALIFICATIONS 

Laws may be passed excluding from the right of suffrage all persons who 
have been or may be convicted of bribery or larceny, or of any infa¬ 
mous crime, and depriving every person who shall make, or become 
directly or indirectly interested in, any bet or wager depending upon 
the result of any election, from the right to vote at such election. 

A law has been passed which forbids any person con¬ 
victed of bribery from voting at any election, unless 
restored to civil rights. 

A law has been passed which forbids any person who 
is interested in a bet on an election from voting at that 
election. 

The constitution also prohibits from voting at any 
election any inhabitant of the state who is engaged in 
a duel, either as principal or as accessory. (XIII, 2.) 


58 


LEGISLATIVE. 


LIV, 


ARTICLE IV. 

LEGISLATIVE. 

** And sovereign law, the state’s collected will, 

Bits empress, crowning good, repressing ill.” 

— Sir William Jons 

« 

DEPARTMENTS OF GOVERNMENT. 

The government of the state of Wisconsin is divided 
into four departments: legislative, executive, adminis¬ 
trative and judicial. This is one more department than 
is found in the government of the United States. In 
that the administrative is not separated from the exec¬ 
utive, as it is in the state government. 

The legislative department is the most important, 
because it makes the laws which are acted on by the 
other departments, and because, to a considerable extent, 
by those laws, it creates offices and confers powers upon 
them. 

The legislature is divided into two houses, in accord¬ 
ance with the universal practice of the English-speak¬ 
ing peoples, one house being a check upon the other, 
to prevent hasty or unwise legislation; and the gov¬ 
ernor with his veto being a check upon both. 

The legislature represents the people, and therefore 
the style of all laws is: u The people of the state of 
Wisconsin, represented in senate and assembly, do enact 
as follows. 11 (Section 17.) 


THE LEGISLATURE. 


IV.J 


LEGISLATIVE. 


59 


ANALYSIS OF THIS ARTICLE. 


I 

2. Numbers... j 


1. Consists 
or. 


8. How Dis¬ 
tricted .. 


4. Elections . - 


5. Eligibility 


8. Potters of 
Each Mouse. 
Separately 


Assembly. 

Senate. 

Assembly — Fifty-four to one hundred members 

Senate — One-fourth to one-third as many. 

Census.. J United States.» 

' Shite.j 

By legislature at the ses- 


Sec. 

* * 


\ 


2 


\ 


Apportioned .J sion after each census • • 

- j By districts of contiguous j 

[ territory. » 

By single districts. 

On Tuesday, after first Monday of November, 

biennially. 

By the qualified electors. 

One year a resident.» 

A qualified elector.V 6 

Residing in the district represented.* 

Judge of elections of its own members. T 

A majority.1 

Less number may keep up r ^ 

the organization. 

Make its own rules.\ 

Punish disorder.V 8 

Expel by two-tliirds vote.. ' 

Choose its officers.. 0 


Quorum 


Preserve oraer 


...) 


Publicity 


Keep a public journal. 10 

Sit with open doors. 10 

Vote by yeas and nays when 
called for. 20 


Restrictions 


Adjourn for three days or less. 10 

On taking office from the 

state. 12 

On holding any United States 

office. 13 

On taking state printing_ 25 

Must take oath of office. 28 

From arrests and civil suits . 15 

From liability for words 

spoken in debate. 16 

Pay and mileage. 21 

8. Time and Place of Meeting . 11 

0. Vacancies— how filled. .. 14 


Powers of 
Members . 


Privileges 


















































THE LEGISLATURE. 


'60 


LEGISLATIVE. 


[IV, 


10. Law*. 


11. Duties. 


Bee. 

Style of the laws .. 17 

Where originate. 19 

Legislative power to supervisors. 29 

On private and local bills ... 18 
But one system of town and 

county government. 23 

Restrictions.-I On lotteries and divorces ... 24 

On state printing. 25 

On pay of officers. 26 

On special legislation. 81 

To regulate suits against the state. 27 

To organize the militia . 2P 

To make elections viva voce . 

To pass general laws where special legislation is 
forbidden. 


. 83 

To provide a great seal for the state. XHI, 4 

RESTRICTIONS ON LEGISLATION. 

The following additional restrictions on the power of the 
legislature are found in other articles of this constitution: 


L Personal 
KRTY .... 


Li B- 


1. No bill of attainder. 

2. No err post facto law. 

3. No law impairing contracts. 

4. No corruption of blood or forfeiture of 

estate.. 

5. No distinction against resident aliens ... 

6. No imprisonment for debt. 

7. Freedom of conscience. 

8. No religious test . . 

1. No interference with title to land given 

by United States. 

2. No tax on United States land. 

3. No unequal tax on non-residents. 

4. No toll or duty on navigation. 

HTf. Form or Supreme Court to be Changed but Once. 

No loan of credit of the state. 

For extraordi-. 


n. 


Federal 
tions .. 


Rela- 


TV. Financial. 


No public debt, except 


Relating 
Counties . 


TO 


nary e x - 

penses . 

War debt. 

Mode of voting on financial bills . 

No debt for internal improvement. 

No banks without a vote of the people. 

Counties of less than nine hundred square 
miles, not to be divided without a vote of 

the people. 

No county seat to be removed without a 
vote of the people. 


I, 19 

I, 13 
L 13 

L 13 
I, 15 
I, 16 
I, 18 
I, 19 

n, 9 
n, 2 
n, 2 

IX, 1 
VII, 4 
vm, s 


vm, 6 

VTH, 7 
VTIL 8 

vm, io 

XI, 5 


xm, 7 
xm, • 

















































IV: 2.] 


NUMBER OF MEMBERS. 


61 


SECTION L 

IN WHOM LEGISLATIVE POWER VESTED. 

The legislative power shall be vested in a senate and assembly. 

The legislature of this state, like those of all other 
states of our Union, is organized after the model of the 
congress of the United States; with two houses— the 
upper one, smaller in numbers, and elected for a longer 
term than the lower house. By this means the lower 
nouse will be likely to represent the wishes of the people, 
and the upper house will be likely to be more cautious 
in what they do, and oppose any very hasty and incon¬ 
siderate action of the lower house. 

The legislature, under this section, has power to pass 
any laws not forbidden by the state or United States 
constitution; and it has also power to repeal or amend 
any laws already passed. 


SECTION II. 

NUMBER OF MEMBERS. 

rhe number of the members of the assembly shall never be less than fifty- 
four, nor more than one hundred. The senate shall consist of a number' 
not more than one-third, nor less than one-fourth, of the number of the 
members of the assembly. 

The number of members of the first assembly, called 
under this constitution, was sixty-six. The number 
of senators was then nineteen. (XIV, 12.) We now 
have the largest number of both that the constitution 
allows us, one hundred assemblymen and thirty-three 
senators. 








<52 LEGISLATIVE. [IV: 8, 

SECTION III. 

APPORTIONMENT. 

The legislature shall provide by law for an enumeration of the inhabitant* 
of the state, in the year one thousand eight hundred and fifty-five, and 
at the end of every ten years thereafter; and at their lirst session 
after such enumeration, and also after each enumeration made 
by the authority of the United States, the legislature shall apportion 
and district anew the members of the senate and assembly, according 
to roe number of inhabitants, excluding Indians not taxed, and soldiers 
and officers of the United States army and navy. 

I. Legislative apportionment eacit five years.— 
The United States census is taken every ten years, in 
the years whose numbers end with zero. The state 
census is taken every ten years, in the years whose 
numbers end with five. So that one census or the 
other is taken every five } T ears. And, therefore, the 
state is districted for senators and assemblymen every 
five years. The reason for having the apportionment 
twice as often as the apportionment for members of 
congress, is that the state is being settled so fast that it 
must be re-districted quite often, or the new parts of 
the state will not have their fair share of assemblymen 
and senators. 

II. The basis of the apportionment. — The appor- • 
tionment into legislative districts is based upon the 
number of inhabitants, so as to make the legislature 
represent the people as exactly as possible. 

Indians not taxed are not citizens of the United 
States, nor subject to their jurisdiction, and, therefore, 
ought not to be represented. United States soldiers 
and sailors who are not citizens of this state are not 
entitled to vote here (Ill, 5); therefore, neither of these 
classes is counted in apportioning members of the legis¬ 
lature. 



IV: 4.] ELECTIOMS FOR ASSEMBLYMEN. 


63 


SECTION IV. 

ELECTIONS FOR ASSEMBLYMEN. 

The members of the assembly shall be chosen [annually! biennially by sin¬ 
gle districts on the Tuesday succeeding the first Monday of November, 
after the adopt ion of this amendment , by the qualified electors of the 
Several districts; such districts to be bounded by county, precinct, town 
or ward lines, to consist of contiguous territory, and be in as compact 
form as practicable.* 

I. Election day. — The clay of election, the Tuesday 
after the first Monday of November, is the same day as 
that of electing congressmen and presidential electors; 
and also the same day as that of electing all state offi¬ 
cers; and occurs every other year, in the even num¬ 
bered years. 

II. Qualified electors. — The qualified electors of 
a district are all those who have a right to vote in the 
state under art. Ill of this constitution, and who re¬ 
side in the district. 

III. Rules for districting tiie state. — The as¬ 
sembly districts are to be bounded by county, precinct, 
town or ward lines, because these are the lines that 
divide the voting districts. It would make a great deal 
of confusion and useless trouble if two or three differ¬ 
ent sets of officers were voted for at the same time and 
place. 

It is provided that the assembly districts shall be in 
as compact form as practicable, for the sake of conven¬ 
ience, and also, as far as possible, to prevent the legis¬ 
lature from so arranging the districts as to give an 
unfair advantage to either political party 


• As amended in 1881, the word in brackets was struck out and the word* 
In italics Inserted, so as to provide for biennial instead of annual legisla¬ 
tures. 




64 


LEGISLATIVE. 


[IV: 6. 


SECTION y. 

ELECTION'S FOR SENATORS. 

The senators shall be [chosen] elected by single districts of convenient con 
tiguous territory, at the same time and in the same manner as members 
of the assembly are required to be chosen, and no assembly district shall 
be divided in the formation of a senate district. The senate districts shall 
be numbered in the regular series [and the senators chosen by the odd- 
numbered districts shall go out of office at the expiration of tha first 
year, and the senators chosen by the even-numbered districts shall go 
out of office at the expiration of the second year, and thereafter the 
senators shall be chosen for the term of two years], and the senators 
shall be chosen alternately from the odd and even-numbered districts. 
The senators elected or holding over at the time of the adoption of this 
amendment , shall continue in office till their successors are duly elected 
and qualified. And after the adoption of this amendment , all senators 
shall be chosen for the term of four years* 

Since the amendments to this and the previous sec¬ 
tion were adopted, members of the legislature are elected 
once in two years instead of every year, as formerly. 
The term of office of an assemblyman is two years, and 
of a senator four years. 

SECTION YI. 

ELIGIBILITY TO THE LEGISLATURE. 

No person shall be eligible to the legislature who shall not have resided one 
year within the state, and be a qualified elector in the district which he 
may be chosen to represent. 

If a person is a qualified elector, he must have re¬ 
sided one year within the state (III, 1), so that this is 
superfluous. 

Every member of the legislature must he a resident 
of the district which he is chosen to represent; so that 
he shall represent it fairly, as he might not do if he did 
not live there. 


*As amended in 1881, the words in brackets were stricken out, and the- 
words in italics were added. 



IV: 7.] 


ELECTIONS AND QUORUM. 


65 


SECTION YII. 

ELECTIONS AND QUORUM. 

\ 

Kaeh house shall be the judge of the elections, returns and qualifications of 
its own members, and a majority of each shall constitute a quorum to 
do business; but a smaller number may adjourn from day to day, and 
may compel the attendance of absent members, in such manner and 
under such penalties as each house may provide. 

This section is taken word for word from the first clause of 
art. I, sec. 5, in the United States cohstitution. 

I. Each house the sole judge of the election of 
its members. — If there is any question as to whether 
any person elected to either house of the legislature 
was legally elected, the house to which he claims to be¬ 
long must judge of the facts in the case. If he was 
elected by fraud, or if false returns were made declaring 
that he had the majority, when he did not really have 
it; or if he is not legally qualified to be a member of 
that house, then the assembly or the senate, as the 
case may be, is bound to reject him. But each house 
ts the sole judge of the elections and qualifications 
of its members. If it decides wrongly, there is no rem¬ 
edy under the constitution. The election or qualifica¬ 
tion of a senator or assemblyman cannot be inquired 
into by the courts under a writ of quo warranto , as can 
that of a state or county officer. (YII, 3.) 

II. A quorum to do business. — A quorum is a suffi¬ 
cient number to do business. The constitution provides 
that at least half the members of either house must be 
present before any business can be done; that is, a mar 
jority makes a quorum. But if there was no exception 
to this, it might frequently happen that there would be 
no quorum; because a majority of the members might 
stay away, either through carelessness or purposely, to 

5 


4 







66 


LEGISLATIVE. 


[IV: 8. 


prevent any business being done. The constitution, 
therefore, provides that any number of members may 
meet and call the roll and adjourn again, so as to keep 
up the organization; and they may, if necessary, arrest 
the absent members, and compel them to come in, and 
thus make a quorum. The sergeant-at-arms of each 
house, with his assistants, is always sent to arrest absent 
members. 

Upon the final passage of any financial bill, three- 
fifths of all the members elected to either house are re¬ 
quired to constitute a quorum. (VIII, 8.1 

SECTION VIII. 

POWER TO ENFORCE ORDER. 

Each house may determine the rules of its own proceedings, punish for 
contempt and disorderly behavior, and, with the concurrence of two- 
thirds of all the members elected, expel a member; bat no member shall 
be expelled a second time for the same cause. 

I. The rules of each house. — The rules of each 
house may be found in any legislative manual. They 
are very nearly the same as those adopted by other state 
legislatures and by congress. Many of these rules are 
adopted by all public meetings, and by societies of every 
sort. Others of them are only fitted for law-making 
bodies, and therefore are only adopted by legislatures 
and by congress. Together, these rules are called the 
rules of parliamentary practice, because they gradually 
grew up in the practice of the English parliament, from 
which they have been adopted, with slight changes, by 
every legislative body in the United States. 

Under this section, either the senate or assembly can 
alter any of these rules, or make new ones for itself, 
whenever it chooses. And the rules of the senate and 



POWER TO ENFORCE ORDER. 


IV: 8.J 


67 


of the assembly need not be the same. Each house 
makes its own rules. 

II. Power to punish for disobedience. — Rules 
would be of no use unless there was some power to en¬ 
force them and to punish for disobedience. Therefore, 
each house has the right, not only to make the rules of 
its own proceedings, but to punish those who violate 
these rules. And this power extends to any one, 
whether a member of the house or not, who disturbs 
its proceedings, or who is guilty of what is called 
4 ‘ contempt.” 

This power is the same as that which all courts of law exer¬ 
cise. If any one should refuse to testify before a committee 
of the legislature when he is summoned to do so, that would 
be “ contempt.” Or if any one, whether a member or not, 
should insult either house by words or actions done in the 
presence of the house, or should refuse to obey any proper 
command of the officers of either house, it would be “ con¬ 
tempt.” But it would not be considered contempt to say or to 
write or print anything, however severe, against the legisla¬ 
ture, anywhere else. To punish any one for words spoken or 
published outside the legislature itself, would be to violate the 
freedom of speech guaranteed by art. I, sec. 3, of this consti¬ 
tution. An attempt to bribe a member, or to threaten him 
into supporting or opposing any measure before the legisla¬ 
ture, is “contempt.” An attempt to arrest a member of the 
legislature, contrary to section 15 of this article, is “con¬ 
tempt.” 

The punishments which either house of the legislar- 
fcure can inflict for contempt or disorderly behavior, are 
reprimand, fine and imprisonment, and for members, 
expulsion. 

XII. The power to expel members. — Each house 
has a right to keep up its moral character and its re¬ 
spectability, by expelling members who are notoriously 
unworthy. But this power might easily be abused for 


68 


LEGISLATIVE 


[IV: 9. 


partisan purposes. Therefore, it is guarded by two pro¬ 
visions: first, to expel a member requires the votes of 
two-thirds of all the members elected; and, second, if 
the expelled member should be re-elected, he cannot be 
expelled a second time for the same offense. 

SECTION IX. 

OFFICERS. 

Each house shall choose Its own officers, and the senate shall choose a tern*- 
porary president, when the lieutenant governor shall not attend aft 
president, or shall act as governor. 

I. The officers of each house. — The officers of the 
senate are the president, chief clerk and sergeant-at- 
arms. (XIII, 6.) The officers of the assembly are the 
same, except that the presiding officer is called the 
speaker. These officers are elected by each house, ex¬ 
cept the president of the senate when the lieutenant 
governor fills that place. Besides these there are a 
large number of additional employes. 

II. The president of the senate. — The lieutenant 
governor is, by virtue of his office, president of the senate 
(V,8), but he cannot act as governor and as lieutenant 
governor at the same time. When he acts as governor, 
or in any other way vacates his office, or is absent from 
the session of the senate, there must be somebody to act 
as the presiding officer of the senate. The senate, there¬ 
fore, elects a temporary president from its own mem¬ 
bers, in such cases, and it has become the practice for 
the senate at the beginning of the session to elect a 
president pro tempore , who presides whenever the lieu¬ 
tenant governor is absent. 


IV: 10.J 


PUBLICITY OF PROCEEDINGS. 


69 


SECTION X. 

PUBLICITY OF PROCEEDINGS. 

Each house shall keep a journal of its proceedings, and publish the same, 
except such parts as require secrecy. The doors of each house shaH 
be kept open, except when the public welfare shall require secrecy. 
Neither house shall, without the consent of the other, adjourn for more 
than three days. 

I. Publicity of proceedings. — Each house must 
keep a journal of its proceedings, and publish it, for 
two reasons: first, for convenience, so that it can be 
referred to when needed, to see what business has been 
done, and what still remains to be done; and second, 
for public information. Keeping the doors of each 
house open answers the latter purpose also. Any one 
who chooses can listen to the debates, and, moreover, 
the reporters of the daily papers make every one who 
reads their reports virtually a hearer of the debates and 
votes. By these means, the people watch their repre¬ 
sentatives. 

But it may happen, in case of war or sedition, that 
the public safety requires secrecy; and there may pos¬ 
sibly be some other cases in which it would not be well 
to have the proceedings made public at once. In such 
a case an exception may be made to the general rule of 
publicity, and either house may sit with closed doors, 
and refuse to publish its proceedings. 

II. Separate adjournment. — If either house could 
adjourn when it pleased, for any length of time, one 
house or the other might stop all business. Like a 
balky team, first one and then the other might refuse 
to pull. But as the members of our legislature are now 
paid a salary, instead of so much a day, it is their inter¬ 
est to finish business as fast as possible, instead of 
adjourning from day to day, to hinder legislation. 


70 


LEGISLATIVE. 


[IY: 12, 


An adjournment for two or three days is frequently 
made, so that members can go home and stay over Sun¬ 
day, or over some holiday. But for an adjournment of 
mare than three days, a joint resolution, passed by both 
houses, is necessary. 


SECTION XI. 

SESSIONS. 

The legislature shall meet at the seat of government, at such time as shall 
be provided by law [once in each year], once in two years, and no oftener, 
unless convened by the governor in special session; and tvhen so con¬ 
vened, no business shall be transacted except as shall be necessary to ac¬ 
complish the special purposes for tvhich it ivas convened.* 

The time for the meeting of the legislature is the 
second Wednesday in January. The legislature can¬ 
not adjourn to meet in special session, as congress' can. 
When it has finished its business, it must adjourn sine 
die (without a day fixed for meeting again); and it can 
only be called together again by the governor — and 
that only on extraordinary occasions. (Y, 4.) Since 
the adoption of the amendment the legislature can only 
meet once in two years, in the odd years, unless con¬ 
vened by the governor. In such special sessions it can 
only eonsider the work laid out for them by the-gov¬ 
ernor’s proclamation. 

SECTION XII. 

RESTRICTIONS ON MEMBERS 

member of the legislature shall, during the term for which he wa 
elected, be appointed or elected to any civil office in the state whio 
shall have been created, or the emoluments of which shall have bee 
increased, during the term for which he was elected. 


* Ag amended in 1881, the words in brackets were stricken out and the 
words in italics were inserted. 




IV: 13.] 


RESTRICTIONS ON ELIGIBILITY. 


71 


This is taken from the United States constitution 
(I, 6, 2), and has the same reason — to prevent any 
influential member of the legislature having an office 
created or made more valuable, and then securing his 
own appointment or election to that office. 

Tt is only civil office, however, which is thus re¬ 
stricted; for it might easily happen, as it did during our 
civil war, that the services of some members of the 
legislature are needed in military offices. 

But this restriction doe§ not cover the case of any 
member of the legislature, after he is elected to any 
office, having the salary of that office raised. It was an 
oversight in the framers of both constitutions not to 
provide against this contingency. 


SECTION XIII. 

t 

RESTRICTIONS ON ELIGIBILITY. 

la person being a member of congress, or holding any military or civil office 
under the United States, shall be eligible to a seat in the legislature; and 
if any person shall, after his election as a member of the legislature, be 
elected to congress, or be appointed to any office, civil or military, under 
the government of the United States, his acceptance thereof shall vacate * 
his seat. 


This is meant to make the members of the legisla¬ 
ture entirely independent of federal influence. They 
are to represent this state — not the United States. A 
member of congress, or a federal office-holder, would be 
likely to be influenced by the United States govern¬ 
ment. There is a further provision (XIII, 3) which 
prohibits any United States officers (except postmasters), 
or the officers of any foreign power, from holding any 
office under this state. By comparing these two sec¬ 
tions, we see that postmasters may hold any office under 




LEGISLATIVE. 


[IV: 15, 


the Btate; but cannot be elected to the legislature 
Strictly speaking, the members of the legislature are 
not officers of the state, but representatives. 


SECTION XIY. 

VACANCIES. 

The governor shall issue writs of election to fill such vacancies as may occur 

in either house of the legislature. 

Vacancies in the legislature may occur through death 
resignation or expulsion, or acceptance of a seat in con¬ 
gress or a United States office. When a vacancy occurs 
the governor must set a day for a new election. The 
person elected on that day holds office for the unexpired 
term only. 


SECTION XV. 

PRIVILEGES OF MEMBERS. 

Members of the legislature shall, in all cases except treason, felony and 
breach of the peace, be privileged from arrest; nor shall they be subject 
to any civil process, during the session of the legislature, nor for fifteen 
days next before the commencement and after the termination of each 
session. 

This is a privilege granted to the members of all leg¬ 
islative bodies in this country and in Europe. By the 
United States constitution (I, 6), senators and repre¬ 
sentatives are privileged from arrest in all cases except 
for treason, felony, or breach of the peace, 44 during their 
attendance at the session of their lespective houses, and 
in going to and returning from the same.” * Mem¬ 
bers of the Wisconsin legislature may be arrested for 
the same crimes as congressmen, at any time and place 

* The privilege of members of congress from arrest includes also theli 
privilege from any summons or civil process during the session,, and in going 
and returning. 




V: 17.] 


THE STYLE OF THE LAWS. 


73 


But this section of the constitution gives members of 
the legislature greater privileges. They are privileged 
from arrest for any other cause than treason, felony or 
breach of the peace, during their whole term of office; 
and they cannot be sued during the session of the legis¬ 
lature, nor for fifteen days before or after it. 

Treason is defined by this constitution (I, 10) to consist only 
in levying war against the state, or in adhering to its enemies. 
Felony is any state's prison offense. Breach of the peace is 
any act that disturbs public order — such as assault and bat- 
terv. or indecent behavior of any kind. m 


SECTION XVI. 

LEGISLATIVE FREEDOM OF SPEECH. 

No member of the legislature shall be liable in any civil action or criminal 
prosecution whatever, for words spoken in debate. 

This is also a privilege given to the members of all 
legislative bodies everywhere.* There must be com¬ 
plete freedom of speech about measures and about men, 
in the debates of the legislature, so that the public good 
shall be best subserved. 


SECTION XVII. 

THE STYLE OF THE LAWS. 

The style of the laws of the state shall be: “ The people of the state of 
Wisconsin, represented in senate and assembly, do enact as follows; ” 
and no law shall be enacted except by bill. 

I. The style of the laws. — All the laws of Wis¬ 
consin begin in these words: “The people of the state 
of Wisconsin, represented in senate and assembly, do 
enact as follows.” The form in which every law must 


* Bee United States constitution, I, 6, clause J 





71 


LEGISLATIVE. 


[IV: IS. 


begin, thus shows that the legislature is to represent 
the people of the state. 

IL. All laws by bill. — The congress of the United 
States frequently passes joint resolutions of both houses, 
which have the effect of laws. These must, however, 
be signed by the president in the same way as bills. 
(United States Constitution, 1,7,3.) But this is forbidden 
to the Wisconsin legislature by this section. All laws 
must be passed in the form of bills; but amendments 
to the constitution are passed in the form of joint reso¬ 
lutions. So also are'memorials to congress. And either 
house, or both together, ma} r pass any resolutions they 
choose that only express their opinions, without having 
the force of laws. Such resolutions, having no legal 
force, do not need the governor’s signature. 

SECTION XVIII. 

PRIVATE AUD LOCAL BILLS. 

No private or local bill, which may be passed by the legislature, shall em¬ 
brace more than one subject, and that shall be expressed in the title. 

This is to prevent three practices very common in 
congress and in many state legislatures. The first is 
that of tacking some private or local bill, which could 
not pass if attention was called to it, on some other bill 
to which nobody has any objections, and thus slipping 
it through the various readings and votes before it is 
noticed. The second is the practice of combining sev¬ 
eral private or local schemes in one bill, and thus each 
getting the support of all the members who would sup¬ 
port any one of them. The third is the practice of 
mg through objectionable measures by an innocent 
title that does not call attention to the maia 
he bill. 


IV: 20.] THE YEAS AND NAYS. 75 

The amendment to this article (sections 31 and 32) 
stops a great deal of this special legislation, but this 
Bection still applies to all local or private bills that are 
not prohibited by that amendment. 

SECTION XIX. 

BILLS MAY ORIGINATE IN EITHER HOUSE. 

\ny bill may originate in either house of the legislature; and a bill passed 
by one house may be amended by the other. 

In congress all bills for raising revenue must origi¬ 
nate in the house of representatives. This restriction is 
abolished for our state legislature, and bills may origi¬ 
nate, that is, be first brought in and passed, in either 
house. 

If a bill that passes one house is amended in the 
other, it is sent back to the house in which it originated, 
w T here the amendment is considered. If this house con¬ 
curs in the amendment, both houses are then agreed on 
the bill, and it goes to the governor for his signature or 
veto. But if the first house does not concur in the 
amendment, a committee of conference maybe appointed 
from each house, who meet and try to come to some 
agreement, until both houses either agree on something, 
or find that they cannot agree. In this latter case, of 
course, the bill is lost. 

SECTION XX. 

THE YEAS AND NAYS. 

The 3 'eas and nays of the members of either house, on any question, shall 
at the request of one-sixth of tiiose present, be entered on the journal. 

This differs from a like provision in the United States 
cou'i it hi ion (I. 5, 3), in requiring only one-sixth 




76 


LEGISLATIVE. 


[IV: 20. 


of those present, instead of one-fifth, to call for the 
yeas and nays. When the yeas and nays are called for, 
if one-sixth of those present concur in the call, the roll 
of members is called over by the clerk, and each mem¬ 
ber who is present answers in his turn, “ aye” or u no.” 
The names of those voting on each side of the question 
are recorded by the clerk in the journal, and published. 
The yeas and nays are very frequently called for in our 
legislature, and the result is always published in the 
leading newspapers, so that any' one who chooses to 
know, can always tell how any member of the legisla¬ 
ture voted on any important question. 

The yeas and nays must be taken in the following cases: 

1. In each house, upon the passage of a bill creating a state 
debt. (VIII, 6.) 

2. In each house, upon the passage of any financial meas¬ 
ure. .(VIII, 8.) 

3. In each house, upon the passage of a bill over the gov¬ 
ernor’s veto. (V, 10.) 

4. In each house, upon the passage of a proposed amend¬ 
ment to the constitution. (XII, 1.) 

In these cases, it is only upon the final passage of these 
measures that the vote must be taken by yeas and nays, and 
entered upon the journal. 

5. But the yeas and nays may be called for upon any vote 
that is taken upon any question; and if the call is sustained 
by one-sixth of those present, the vote must be taken by yeas 
and nays, and entered upon the journal. (IV, 20.) 

6. All elections made by the legislature must be made by a 
viva voce vote, which is similar to the vote by yeas and nays, 
the only difference being that each member announces the 
name of the candidate for whom he votes, instead of saying 
“aye” or “ no.” In both cases the votes are entered upon the 
journal. (IV, 30.) The only exception to this is in case an elec¬ 
tion for governor should go to the legislature, in which case 
the election is by joint ballot. (V, 3.) 


IV: 22.] POWERS OF COUNTY BOARDS. 


n 


SECTION XXI. 

COMPENSATION OF MEMBERS. 

E&ch member of the legislature shall receive for Ills services for and during 
a regular session the sum of five hundred dollars, and ten cents for 
every mile he shall travel in going to and returning from the place of 
meeting of the legislature, on the most usual route. In case of an 
extra session of the legislature, no additional compensation shall be al¬ 
lowed to any member thereof, either directly or indirectly, except for 
mileage, to be computed at the same rate as for a regular session. No 
stationery, newspapers, postage, or other perquisites, except the salary 
and mileage above provided, shall be received from the state by any 
member of the legislature for his services, or in any other manner, as 
such member.* 

As the members now receive a stated salary, it is 
their interest to get through with business as soon as 
possible, and it is not their interest to have extra ses¬ 
sions. 

The mileage is to be calculated upon the most usual 
route, to prevent members going a long distance out of 
their way on business or for pleasure, and getting mile¬ 
age for that extra travel. 

Stationery and other perquisites are forbidden, to 
prevent some abuses which had grown up by which 
members virtually added to their salary. By the 
amendment to this section the salary is increased and 
the perquisites cut off. 

SECTION XXII. 

POWERS OF COUNTY BOARDS. 

The legislature may confer upon the boards of supervisors of the several 
counties of the state, such powers, of a local, legislative and adminis 
trative character, as they shall from time to time prescribe. 

*As amended in 1881, the words in italics were added to this section, and 
the pay raised from three hundred and fifty dollars to five hundred dollars. 
But the section had been previously amended, in 1867. As it originally stood 
in the constitution, it read as follows: 

“ Each member shall receive for his services two dollars and fifty cents 
for each day’s attendance during the session, and ten cents for every mile 
he shall travel in going to and returning from the place of meeting of the 
legislature, on the most usual route.” 





78 


LEGISLATIVE. 


[IV: 23. 


I. The organization of county boards of super¬ 
visors. — The board of supervisors consists now in each 
county of the chairmen of the town boards and a super¬ 
visor elected by each incorporated village and by each 
ward of a city. They elect their own chairman, and the 
county clerk acts as their clerk. 

II. Powers of county boards of supervisors.— 
The legislature has given the boards of supervisors a 
great many powers of a local character, of which only 
a few of the most important can be here specified: 

1. They have charge of all the buildings and other property 
of the county. 

2. They examine and settle all accounts against the county. 

3. They fix the salaries of county officers, within the limits 
prescribed by law. 

4. They apportion taxes among the various towns, villages 
and cities in the county, and they levy all taxes nesded to 
pay the expenses of the county government. 

5. They may change the name of any person, town or village 
in the county. 

6. They may change the boundaries of any town or village 
in the county. 

7. They may incorporate literary, benevolent, charitable and 
scientific institutions. 

8. They may grant charters for ferries and plank and turn¬ 
pike roads, and fix the rates of toll. 


SECTION XXIII. 

TOWN AND COUNTY GOVERNMEN' 

The legislature shall establish but one system of town and county govern¬ 
ment, which shall be as nearly uniform as practicable. 

I. The system of county government. — Like the 
state government, the county government consists of 
legislative, executive, administrative and judicial officers. 

The board of supervisors is the county legislature, with the 
powers named in the notes to the last section. 


*V: 23.1 TOWN AND COUNTY GOVERNMENT 


•79' 


The executive officers of a county are sheriff and coroner. 

The administrative officers are clerk, treasurer, register of 
deeds, surveyor, district attorney and school superintendent. 

The judicial officers are county judge, clerk of the circuit 
court, and one or more court commissioners. The powers and 
duties of these officers are given elsewhere; those of the exec¬ 
utive and administrative officers under article VI, section 4, 
and those of the judicial officers under article VII, sections 
12, 14 and 23. ^ 

II. The system of town government. — The town 
government is simpler than either county, state or 
national. The legislature consists of all the voters in 
the town, who meet on the first Tuesday in April, hear 
reports of officers, vote taxes for schools, for roads and 
bridges, for the poor, and for such other town purposes 
as ma} 7 be necessary; make such orders and by-laws for 
governing the town as they think necessary, and elect 
the following officers by ballot: 

1. A town board of supervisors, consisting of three mem¬ 
bers, who enforce all orders and by-laws of the town, audit all 
accounts, fill all vacancies in town offices, and act as trustees 
of the town property. The chairman, or in his absence one of 
the supervisors, represents the town in the county board. 

2. A town clerk. 

3. A town treasurer, who collects taxes and keeps the money 
of the town subject to the order of the supervisors. 

4. An assessor, who makes a list of all the taxable property 
in the town, with the value of it. 

5. Four constables. 

6. Four justices of the peace, of whom two are elected every 
year. 

7. Overseers of highways, who need not be elected by ballot 
unless the voters please to do so. 

The town government is almost a pure democracy. The 
voters of each town assemble and discuss all matters of com¬ 
mon concern, and decide them by a majority vote. But it is 
found to be impossible, even in so small a territory as a single 
town, for the voters in a body to do all the administrative. 


80 


LEGISLATIVE. 


[IV: 24. 


executive and judicial business of the town. For this they 
have to elect officers; but the voters are themselves the legis¬ 
lature of the town. 

III. The system to be uhiform. — This system of 
town and county government has been changed several 
times by the legislature. County superintendents of 
schools have been substituted for town superintendents; 
the composition of the county board of supervisors has 
been twice changed; but these changes have been uni¬ 
form throughout the state. Whenever the legislature 
has given one county a system of government in any 
respect different from the rest, the supreme court has 
decided the act to be unconstitutional. 

SECTION XXIV. 

LOTTERIES AND LEGISLATIVE DIVORCES FORBIDDEN. 
The legislature shall never authorize any lottery, or grant any divorce. 

I. Lotteries. — This prohibits all lotteries. The 
legislature can neither itself legalize a lottery nor give 
power to any state, county, city, village or town officers 
to authorize a lottery. What the legislature cannot do 
itself, it might be constitutional for it to empower some 
one else to do, as is the case with divorces, which the 
legislature itself cannot grant, but which it has author¬ 
ized circuit judges to grant. Bat in this case, the legis¬ 
lature is not allowed to authorize a lottery. To allow 
anybody else to give power for a lottery, would be just 
as much an authorizing of lotteries as if the legislature 
should itself grant licenses to them, only it would be 
doing it indirectly instead of directly. 

Grift enterprises of all sorts have been often decided by 
the courts to be lotteries, and are therefore contrary to 
law. 


IV: 26.] COMPENSATION OF OFFICERS, Etc. 


81 


II. Divorces. — Divorces are granted by the circuit 
judges at the regular term of court, for the causes named 
in the laws. The legislature cannot itself grant any 
divorce, but it has passed a general law under which 
divorces can be granted by the courts, for certain speci¬ 
fied causes. 


SECTION XXY. 

STATE PRINTING. 

** 

The legislature shall provide by law that all stationery required for the use 
of the state, and all printing authorized and required by them to be 
done for their use, or for the state, shall be let by contract to the lowest 
bidder; but the legislature may establish a maximum price. No mem¬ 
ber of the legislature, or other state officer, shall be interested, either 
directly or indirectly, in any such contract. 

This is to prevent any frauds in the state printing. 
It cannot be given as a reward for party services, but 
must be given to the person who will do the Svork the 
cheapest. U A maximum price” means the highest 
price which will be given. The legislature may say 
that no more than so much will be paid in any case, to 
prevent a combination of printers to keep prices up. 

Members of the legislature and state officers are for¬ 
bidden to have any interest in contracts for state print¬ 
ing, so that there shall be no suspicion of any corrupt 
bargains, or fraud of any kind. 

SECTION XXYI. 

COMPENSATION OF OFFICERS AND CONTRACTORS. 

The legislature shall never grant any extra compensation to any public offi¬ 
cer, agent, servant, or contractor, after the services shall have been 
rendered or the contract entered into. Nor shall the compensation of 
any public officer be increased or diminished during his term of office. 

This is to make public officers and contractors en¬ 
tirely independent of the legislature. Having nothing 
6 



82 


LEGISLATIVE. 


[IV: 28. 


to hope or fear in the way of salary, they will be more 
likely to do their work faithfully 

SECTION XXVIL 

SUITS AGAIHST THE STATE. 

rhe legislature shall direct by law in what manner and in what courts suit* 
may be brought against the state. 

It has been provided by law that no person can sue 
the state for any claim he has against it, until he has 
presented it to the legislature and they refuse to allow 
it. He must notify the attorney general, who is the 
state’s lawyer, and who must defend the state in the 
trial of the case. The case is tried before the supreme 
court so far as the law of the case is concerned. If the 
facts have to be proved, the case is sent down to some 
circuit court where it is tried before a jury, who decide 
upon the facts, as in any civil suit, and their judgment 
is sent up to the supreme court, and a verdict rendered 
in accordance with the facts as decided by the jury, and 
the law as interpreted by the supreme court. 

SECTION XXVIII. 

V 

OATH OF OFFICE. 

Members of the legislature, and all officers, executive and judicial, except 
such inferior officers as may be by law exempted, shall, before they 
enter upon the duties of their respective offices, take and subscribe an 
oath or affirmation to support the constitution of the United States and 
the constitution of the state of Wisconsin, and faithfully to discharge 
the duties of their respective offices to the best of their ability. 

The oath is taken unless the officer has conscientious 
scruples against taking an oath; in that case, he simply 
affirms instead of swearing. 


IV: 30.] ELECTIONS BY THE LEGISLATURE. 


83 


SECTION XXIX. 

STATE MILITIA. 

The legislature shall determine what persons shall constitute the militia of 
the state, and may provide for organizing and disciplining the same, in 
such manner as shall be prescribed by law. 

In theory, all the able-bodied males in the state, 
between the ages of eighteen and forty-five, who are 
not specially exempted, belong to the state militia. In 
actual practice, the state militia consists of the gov¬ 
ernor’s staff and the volunteer companies organized in 
several of the cities and villages. 

A volunteer company may be formed anywhere in the state, 
where sixty-five persons subject to military duty wish to be 
organized into a military company. They elect their own 
officers. They are exempt from poll tax and jury duty, 
and are liable to be called out by the governor and other offi¬ 
cers, in case of war, insurrection, riot or resistance to the laws. 
In case of war, volunteers may be called for, and if enough do 
not volunteer, a draft may be ordered. The soldiers who then 
volunteer or are drafted may serve under the authority of the 
state, or they may be sworn into the United States service. 


SECTION XXX 

ELECTIONS BY THE LEGISLATURE. 

In all elections to be made by the legislature, the members thereof shall 
vote viva voce, and their votes shall be entered on the journal. 

The legislature elects the United States senators from 
this state, and each house elects its own officers, except 
the president of the senate, when the lieutenant gov¬ 
ernor fills that place. 

The elective officers of each house are: for the senate, the 
president pro tem., chief clerk and sergeant-at-arms; and for 
the assembly, the speaker, chief clerk and sergeant-at-arms. 
<XIII, 6.) The other officers are appointed. 



64 


LEGISLATIVE. 


[IV: 31. 


Viva voce means, literally, “ with the living voice.”’ 
A viva voce vote is one in which those who vote do so 
with their voice, not by ballot, or by a show of hands, 
or by rising. 

The object of having a vote viva voce, and having: 
each vote entered on the journal, is to make it public* 
and, therefore, as fair as possible. 


SECTION XXXI. 

SPECIAL LEGISLATION FORBIDDEN. 

The legislature is prohibited from enacting any special or private laws in> 
the following cases: 1st. For changing the name of persons, or consti¬ 
tuting one person the heir-at-law of another. 2d. For laying out, open¬ 
ing or altering highways, except in cases of state roads, extending into 
more than one county, and military roads, to aid in the construction of 
which lands may be granted by congress. 3d. For authorizing persona 
to keep ferries across streams, and points wholly within this state. 
4th. For authorizing the sale or mortgage of real or personal property 
of minors or others under disability. 5th. For locating or changing any 
county seat. (5th. For assessment or collection of taxes, or for extend¬ 
ing the time for the collection thereof. 7th. For granting corporate 
powers or privileges, except to cities. 8th. For authorizing the appor¬ 
tionment of any part of the school fund. 9th. For incorporating any 
rit.y, town or village, or to amend the charter thereof. 

This section and the following one were adopted at 
the general electkm in 1871 and amended in 1892 to 
apply to city charters. 

All these cases can be better provided for, each by a 
general law which will cover all cases that will arise, 
than they would be by having the legislature pass a 
special law for every particular case. 

For instance, it is a great deal better to give the business of 
changing people’s names to the county board or the county 
judge, and not trouble the legislature with it. The result of 
special legislation always is to cause corruption and bribery of 
members and indiscriminate haste in passing laws, and to bur¬ 
den the statute books with a great number of private and 


av: 32.] GENERAL LEGISLATION REQUIRED. 


85 


local laws. The legislature is made the theater of contending 
local or private interests, to the exclusion of measures of great 
public utility, but in which no one is pecuniarily interested. 
The experience of this and other states has, therefore, shown 
that the public good will be best promoted by excluding as 
much special legislation as possible. 

In addition to the nine cases named in section 31, 
the constitution forbids special laws in the following 
cases: 

1. No bill of attainder can be passed; that is, a bill punishing 
particular persons by name. (I, 12.) 

2. No preference can be given by law to any particular 
religious establishment or mode of worship. (I, 18.) 

3. There can be but one system of town and county govern¬ 
ment. (IV, 23.) 

4 . The legislature can grant no divorce. (IV, 24.) 

5. The state printing must be given to the lowest bidder. 

(IV, 25.) 

6. Officers cannot receive extra pay. (IV, 26.) 

7. The rule of taxation must be uniform. (VIII, 1.) 

8. The supremo court has decided that acts of the legislature 
♦exemptihg particular persons or corporations from any general 
law are void. 

SECTION XXXII. 

GENERAL LEGISLATION REQUIRED. 

The legislature shall provide general laws for the transaction of any hurt* 

ness that may be prohibited by section thirty-one of this article, and &D 

such laws shall be uniform in their operation throughout the state. 

The legh4^f at/ has provided general laws for all 
these ease* 


LT. GOVERNOR. GOVERNOR, 


86 


THE EXECUTIVE DEPARTMENT. 


rv- 


ARTICLE V. 

THE EXECUTIVE DEPARTMENT. 

“ I want the seals of power and place, 

The ensigns of command; 

Charged by the People’s unbought grace. 

To rule my native land. 

Nor crown nor scepter would I ask, 

But from my country’s will, 

By day, by night, to ply the task 

Her cup of bliss to fill.”— John Quincy Adams. 


1 . 


2. Eligibility... 


8 . 

4 . 


BfO. 

Term of Office, two years... „. 1' 

i Citizen of United States. ® 

| Qualified elector of state. 2? 

T , , j Time — general election.. £ 

' Plurality elects. 8 

By the legisla- j Time. 8 

ture. ( Manner. 8 

Returns of Election. 8 

Military. 

Convocation 


Election 


Powers and 
Duties. 


Civil. 


With leg¬ 
islature 


4 

4 

and HI, 11 
Message.... 4 
Veto. 10' 

4- 
6 


How Remova¬ 
ble. 


Permanently.... 


Temporarily. 


Administrative. 

Pardons and reprieves 
Call elections to fill vacan¬ 
cies . IH, 14 

Removal of county offi¬ 
cers . VI, 4 

6. Salary. 5 

By conviction upon im¬ 
peachment . 7 

By death. 7 

By resignation. 7 

By impeachment. 7 

By disease. 7 

{ By absence from the state 7 

Lieutenant governor. 7 

Secretary of state. g 

Eligibility, same as governor. 2 

Election, same as governor. $ 

Removal, same as governor. g 

Duties j President of senate. g 

Salary.. 


ft. 

f 1. 
2 . 

8 . 

4. 

5 . 


Replaced by. . 


Acting governor. 7 














































V : 2.] 


ELIGIBILITY. 


87 


SECTION L 

EXECUTIVE POWER VESTED IN GOVERNOR 

The executive power shall be vested in a governor, who shall hold his office 
for two years. A lieutenant governor shall be elected at the same time* 
and for the same term. 

The executive power is vested in one man rather than 
in a committee or board, because experience has shown 
that one man who has the whole responsibility will be 
more efficient in carrying out the laws than several to¬ 
gether would be. When laws are to be made, it is better 
to have them considered by a number of persons, so as 
to get the wisdom of all. But where laws are to be en¬ 
forced, it is better to give all the responsibility to one 
man, so that what is to be done can be done speedily 
and thoroughly. Wisdom is needed in making the laws, 
and that is secured by having a large legislature; but 
energy is needed in carrying out the laws, and that is 
secured by having a single executive. 

The president holds his office for four years. The 
governor of Wisconsin holds his office for two years only. 
He can, however, be re-elected as many times as the 
people choose to make him governor. No governor has 
yet served longer than six years. 

The lieutenant governor is elected like the vice pres¬ 
ident, for the same term as his chief. This is because 
he may be called on to take his place. 

SECTION II. 

ELIGIBILITY. 

No person, except ft citizen of the United States and a qualified elector of 
the state, shall be eligible to the office of governor or lieutenant gov¬ 


ernor. 


88 


THE EXECUTIVE DEPARTMENT. 


[V: 3. 


I. Eligibility of the governor. — No person can 
be president or vice president of the United States who 
is not a native-born citizen. Bat a foreigner who has 
been naturalized is eligible to the office of governor or 
lieutenant governor. A foreigner can vote, after he has 
been here a year, if he takes out his papers declaring 
his intention to become a citizen of the United States, 
but he cannot be elected governor, lieutenant governor, 
or judge of the circuit or supreme courts, until he be : 
comes a citizen. 

II. Eligibility of the lieutenant governor.— 
The lieutenant governor must have the same qualifica¬ 
tions as the governor, because he is frequently made 
acting governor by reason of the governor’s sickness or 
absence from the state; and he would be made governor 
should the governor die, resign, or be removed upon an 
impeachment. He must have the same qualifications as 
the governor, because he may have to take the governor’s 
place. 

SECTION III. 

ELECTION FOR GOVERNOR. 

Hi© governor and lieutenant governor shall be elected by the qualifier 
electors of the state, at the times and places of choosing members of the 
legislature. The persons respectively having the highest number ol 
votes for governor and lieutenant governor shall be elected. But in case 
two or more shall have an equal and the highest number of votes for 
governor or lieutenant governor, the two houses of the legislature, at it© 
next annual session, shall forthwith, by joint ballot, choose one of the 
persons so having an equal and the highest number of votes for governor 
or lieutenant governor. The returns of election for governor and lieu¬ 
tenant governor shall be made in such manner as shall be provided by 
law. 

I. Election by the people. — As the governor and 
lieutenant governor hold office for two years, it is only 
every other year that an election for governor and lieu- 
tenant governor occurs. This election is in the even 


V: 4.] POWERS AND DUTIES OF GOVERNOR. 


89 


years since the amendments to the constitution were 
made which provided for biennial elections. Previous 
to that time they were in the odd years. 

II. Election by the legislature. — In the election 
of president and vice president, a majority of all the 
votes cast by the presidential electors is necessary to a 
choice, so that if there are three or more candidates, it 
may very well happen that none of them receives a 
majority. But the state constitution provides that a 
plurality shall elect, so that' it does not matter how 
many candidates there may be for the office of governor 
or lieutenant governor; the person who has the highest 
number of votes, although that may not be a majority 
of all, is elected. It is not at all likely, but it is barely 
possible, that there may be a tie vote. In that case, 
should it ever occur, the legislature must decide between 
the two or more candidates who received an equal and 
the highest number of votes. This must be done by 
joint ballot of the two houses of the legislature. In a 
joint ballot, both houses sit together as if they were 
one, and each member has one vote. If they do not 
choose the governor or lieutenant governor on # the first 
ballot, they must keep on balloting until they do elect 
one or the other of the candidates. This must be the 
first business of the legislature after organizing. The 
word “ forthwith ” in this section requires that. 

SECTION IV. 

POWERS AND DUTIES OE THE GOVERNOR. 

®he governor shall be commander-in-chief of the military and naval forces 
of the state. He shall have the power to convene the legislature on extra¬ 
ordinary occasions; and in case of invasion, or danger from the preva¬ 
lence of contagious disease at the seat of the government, he may 
convene them at any other suitable place within the state. He shall com 
municate to the legislature, at every session, the condition of the state, and 


90 THE EXECUTIVE DEPARTMENT. [V: 4. 


recommend such matter to them for their consideration as be may deem 
expedient. He shall transact all necessary business with the officers of 
the government, civil and military. He shall expedite all such measures 
as may be resolved upon by the legislature, and shall take care thac the 
laws be faithfully executed. 

I. General statement. — This section contains a 
summary of the principal powers and duties of the gov¬ 
ernor, except the power of pardon and the veto power; 
for which, see sections 6 and 10. An analysis of all the 
powers and duties of the governor is given at the be¬ 
ginning of this article. 

It is well to notice that the governor of Wisconsin 
does not have some powers which the president has. 
He has no power to make treaties, because the state of 
Wisconsin is not an independent nation, and, therefore, 
cannot make treaties through any branch of its govern¬ 
ment. For the same reason he does not appoint ambas¬ 
sadors or consuls. He does not appoint the j udges or 
the heads of the state departments; for these, in Wis¬ 
consin, are elected by the people. And his power of 
granting pardons is limited. 

II. Military powers. — As the president is com¬ 
mander-in-chief of the military and naval forces of the 
United States, so is the governor commander-in-chief 
of the military and naval forces of the state of Wis¬ 
consin. 

The state does not yet have any naval forces, although it is 
possible for it to have ships of war upon Lake Michigan and 
the Mississippi river, if congress should consent to it. (U. S. 
Const., I, 102.) But the state has no use for a navy: being 
protected against foreign enemies by the whole power of the 
United States. 

The military forces of the state consist, in time of peace, of 
the various volunteer companies which are organized under 
the state military law^s. In time of w T ar, the state military 
forces co'nsist, in addition to the regular militia, of the volun- 


y: 4.] POWERS AND DUTIES OF GOVERNOR. 


91 


teer and drafted soldiers who are enlisted for that special oc¬ 
casion. These are usually sworn into the service of the United 
States, and are then no longer under the authority of the gov¬ 
ernor, but under that of the president. Their officers, how¬ 
ever, are appointed by the governor, even while they are in the 
service of the United States, by virtue of article I, section 8, 
of the United States constitution. 

III. Convocation of legislature. — The governor 
may call a special session of the legislature whenever, 
for any reason, their action is needed, and cannot be 
put off until the regular session. 

In case of invasion, when the enemy’s army has taken 
or is likely to take the capital, or when a contagious 
disease makes the capital a dangerous place, he can call 
the legislature, at either their regular session or a special 
one, to meet at such other place in the state as he thinks 
best. 

IV. The governor’s message. — The governor’s mes¬ 
sage is always sent at the opening of the regular session 
of the legislature. 

The governor gives a brief report of the condition of the 
state, and sends it with the reports of all the different state 
officers and official boards. He gives, also, any recommenda¬ 
tions that he pleases, which the legislature adopts or not, as it 
chooses. When he calls a special session, he must, of course, 
send a message to the legislature to inform them why he called 
them together, and what it is that he wishes to have them act 
upon at that special session. 

V. Transact business of the state. — The gov¬ 
ernor acts as representative of the state, and as such 
must transact all necessary business with the officers of 
the state. He also represents the state in all its busi¬ 
ness with other states, or with the United States, ex¬ 
cept where some other officer is expressly named to 
represent the state for certain purposes. 


•92 


THE EXECUTIVE DEPARTMENT. 


[V: G 


VI. Execute the laws.— The governor is the exec¬ 
utive of the state, and as such, he must see that the 
laws are faithfully executed. He has no choice in this 
matter. Whether he thinks that a law is right or 
wrong, he must see that it is executed. If force is used 
to prevent the execution of a law, he can call on the 
militia and police forces, and if there should be serious 
resistance to them, he can call on the United States 
army to help him enforce the laws. (U. S. Const., IV, 4.) 

SECTION V. 

SALARY OE GOVERNOR. 

i'he governor shall receive during his continuance in office an annual com¬ 
pensation of [one thousand two hundred and fifty dollars] five thou¬ 
sand dollars, which shall be in full for all traveling or other expenses 
incident to his duties. 

This section was amended at the general election in 1869, by 
striking out the words in brackets and inserting the words in 
italics. 

The salary of the governor of Wisconsin is five thou¬ 
sand dollars, which is intended to be enough to enable 
him to live in good style at the capital. 

SECTION VI. 

THE PARDONING POWER. 

% 

The governor shall have power to grant reprieves, commutations, and par¬ 
dons, after conviction, for all offenses, except treason and cases of im¬ 
peachment, upon such conditions and with such restrictions and 
limitations as he may think proper, subject to such regulations as may 
be provided by law relative to the manner of applying for pardons. 
Upon conviction for treason, he shall have the power to suspend the exe¬ 
cution of the sentence until the case shall be reported to the legislature, 
at its next meeting, when the legislature shall either pardon, or com¬ 
mute the sentence, direct the execution of the sentence, or grant a 
further reprieve. He shall annually communicate to the legislature 
each case of reprieve, commutation or pardon granted, stating the 
name of the convict, the crime of which he was convicted, the sentence 
and its date, and the date of the commutation, pardon or reprieve, with 
his reasons for granting the same. 


V: 7.] VACANCIES IN OFFICE OF GOVERNOR. 


93 ' 

A reprieve is a delay in the execution of a sentence, 
especially a sentence of death. A commutation ot a 
sentence is to change it for one less severe. A pardon 
is a reversal of the sentence; a pardon stops all further 
punishment, and restores the criminal to his civil rights. 
(See III, 2.) 

From the nature of the case, the governor must have 
almost unlimited power to pardon; for no laws made 
beforehand can cover all the cases that may deserve 
pardon. Therefore, the governor’s power to pardon 
must be discretionary. It is limited, however, in five 
points: 

(1) The legislature prescribes the manner of applying to the 
governor for a pardon. 

(2) In cases of treason, the governor cannot pardon abso¬ 
lutely, but only with the concurrence of the legislature. 

(3) In cases of impeachment he cannot pardon at all. 

(4) And he must report to the legislature all the pardons he 
grants, and his reasons for granting them. 

(5) He cunnot pardon before trial and conviction. 

The manner of applying for a pardon is very care¬ 
fully prescribed by law, so that only those who deserve 
pardons shall get them. 

In cases of treason the governor has no power to 
pardon. He can only suspend the sentence long enough 
for the legislature to act upon it. The governor may 
do this or not, as he chooses. But if he does suspend 
the sentence of a person convicted of treason, the legis¬ 
lature must act upon it in some way. 

SECTION VII. 

VACANCIES IN THE OFFICE OF GOVERNOR. 

Id -wwe of the impeachment of the governor, or his removal from office, 

death, inability from mental or physical disease, resignation, or absence 

from the state, the powers and duties of the office shall devolve upon 


94 


THE EXECUTIVE DEPARTMENT. 


[V: 7. 


the lieutenant governor for the residue of the term, or until the gov¬ 
ernor, absent or impeached, shall have returned, or the disability shall 
cease. But when the governor shall, with the consent of the legislature, 
be out of the state in time of war, at the head of the military force 
thereof, he shall continue commander-in-chief of the military force of 
the state. 


The governor may go out of office, either temporarily 
or permanently. He goes out of office temporarily in 
case he is impeached (VII, 1), and permanently, should 
he, on the impeachment trial, be found guilty and re¬ 
moved from office by the senate. He goes out of office 
temporarily when he is so sick or so out of his right 
mind that he cannot discharge the duties of his office; 
and permanently in case of his death. He goes out of 
office temporarily whenever he goes out of the state; 
and permanently should he ever resign. When he goes 
out of office temporarily, the lieutenant governor acts 
as governor as long as he stays out of office; but when 
he goes of office permanently, the lieutenant governor 
becomes governor for the rest of the two years for 
which they were both elected. 

The exception is made, that whenever in time of war 
the governor goes out of the state to command the state 
troops, he shall still be governor, so far as being com¬ 
mander-in-chief is Concerned. But he can only do this 
with the consent of the legislature; and the lieutenant 
governor will act as governor in every other respect. 

The question is not decided by the United States constitu¬ 
tion whether an officer who is impeached is suspended from 
his office while under trial. When President Johnson was 
impeached, it was decided that a United States officer who is 
impeached is not, therefore, suspended; and the president 
went on with the duties of his office while he was being tried. 
The framers of our state constitution provided that whenever 
the governor is impeached he shall be suspended from hij 
office during the time of the trial, and the lieutenant governor 


V: 8.J POWERS OF LIEUTENANT GOVERNOR. 


95 


shall act as governor. Judges who may be impeached are 
suspended while under trial. (VII, 1.) The inference is that 
any otiier officer who may be impeached will retain his office 
until ho is convicted. 


SECTION VIII. 

POWERS OF THE LIEUTENANT GOVERNOR. 

The lieutenant governor shall be president of the senate, but shall have only 
a casting vote therein. If, during a vacancy in the office of governor, 
the lieutenant governor shall be impeached, displaced, resign, die, or 
from mental or physical disease become incapable of performing the 
duties of his office, or be absent from the state, the secretary of state 
Bhall act as governor until the vacancy shall be filled, or the disability 
shall cease. 

I. President of the senate. — Just as the vice 
president is president of the United States senate, so the 
lieutenant governor is president of the state senate. He 
has no vote on ordinary occasions, because he is not a 
member of the senate; but when there is a tie vote on 
any question, he has then a casting vote (or deciding 
vote); not as a member, but as the presiding officer of 
the senate. In this he differs from the speaker of the 
assembly, who has a vote on all questions, but no addi¬ 
tional casting vote. In the assembly, as in the senate 
when presided over by a senator, if there is a tie vote 
the matter is lost, because it requires a majority to carry 
a question. 

II. Acting governor. — When the lieutenant gov¬ 
ernor is acting as governor, or if he is sick or absent, 
or if he should be impeached, or resign, or die, he can¬ 
not, of course, preside in the senate. The senate in that 
case elect one of their own number president pro 
tempore (for the time). The president pro tempore has 
a vote on all questions as a member of the sea ate, but 
has no asting vote. But the president of the senate 


96 


THE EXECUTIVE DEPARTMENT. 


[V: 10, 


does not act as governor when the governor and lieu¬ 
tenant governor are both incapacitated, as the president 
of the United States senate does when the president 
and vice president are both incapacitated. This duty 
conies on the secretary of state, who is the next highest 
elective officer of the state. 

SECTION IX. 

[The lieutenant governor shall receive double the per diem allowance of 
members of the senate, for every day’s attendance as president of the 
senate, and the same mileage as shall be allowed to members of the legis¬ 
lature.] The lieutenant governor shall receive during his continuance 
in~ojQice, an annual compensation of one thousand dollars. 

This section was amended in 1869. The section as it was is 
in brackets; the section as amended, in italics. 

The intention of this section is to give the lieutenant 
governor a compensation for the time he actually 
spends. When he acts as governor he draws the 
salary of governor. 

SECTION X. 

HOW BILLS BECOME LAWS. 

Every bill which shall have passed the legislature shall, before it becomes a 
law, be presented to the governor. If he approve, he shall sign it; but 
if not, he shall return it, with his objections, to that house in which it 
shall have originated, who shall enter the objections at large upon the 
journal and proceed to reconsider it. If, after such reconsideration, 
two-thirds of the members present shall agree to pass the bill, it shall 
be sent, together with the objections, to the other house, by which it shall 
likewise be reconsidered, and if approved by two-thirds of the members 
present, it shall become a law. But in all such cases, the votes of both 
houses shall be determined by yeas and nays, and the names of the 
members voting for or against the bill shall be entered on the journal of 
each house respectively. If any bill shall not be returned by the gov¬ 
ernor within three days (Sundays excepted) after it shall have been pre- 
gented to him, the same shall be a law, unless the legislature shall, by 
their adjournment, prevent its return; in which case it shall not be a 
law. 


V: 10.] HOW BILLS BECOME LAWS, 97 

This section is taken, with a few slight changes, from 
the United States constitution. (I, 7, 2.) 

A bill becomes a law as soon as it is signed by the 
governor, or if he refuses to sign it, as soon as it is 
passed over his veto. 

When the governor vetoes a bill, his reasons for veto¬ 
ing the bill must be given in writing, so that they can 
be copied upon the journal of the house that originated 
the bill. They must then vote upon it, and they must 
vote by ayes and noes, so that "the vote of every member 
can be recorded. If two-thirds of the members present 
do not agree to pass it, that is the end of the bill. If 
two-thirds of the members present do vote for it, it 
goes to the other house, where the governor’s objections 
are entered upon the journal as before, and a vote taken 
by ayes and noes, and recorded as before. If two-thirds 
of the members present do not vote for the bill, the bill 
is lost. If two-thirds of them do vote for it, it becomes 
a law. 

The president of the United States has ten days in 
which to consider a bill which has been passed by con¬ 
gress. The governor has only three days in which to 
consider a bill which has been passed by the legislature. 
In these three days Sundays are not counted, because 
no official business can be done on Sunday. 

During the last three days of the session of the legis¬ 
lature the governor need not veto a bill that he does not 
wish to become a law. All he needs to do is not to sign 
it, and then it cannot become a law, even if two-thirds 
of each house are ready to vote for it. 

There are four ways in which a bill may be lost: 

1. It may not get a majority in the assembly. 

2. It may not get a majority in the senate. 

8. It may be vetoed by the governor, and not passed av&r 
)iia veto by the legislature. 

7 


98 


THE EXECUTIVE DEPARTMENT. 


[V: JO. 


4. It may be “pocketed” by the governor during the last 
three days of the session. 

And there are three ways in which a bill may become 
a law: 

1. It may pass both houses and be signed by the governor. 

2. It may pass both houses, be vetoed by the governor, and 
be passed over his veto by a two-thirds majority of each 
house. 

3. It may pass both houses, and the governor may fail to 
sign it within three days (when these are not at the close of 
the session). 


ADMINISTRATIVE. 


99 


VL] 


ARTICLE VL 

ADMINISTRATIVE. 

I. Administrative officers not a part of the 
executive. — Iii the state government the administra¬ 
tive officers are not a part of the executive as in the 
United States government. They are either elected 
directly by the people or are appointed by the governor, 
but cannot be removed except for cause. The governor 
has no cabinet such as the president has. 

II. Elected officers. — The state administration 
now consists of the following elected officers: 

1. The Secretary of State. 

2. The Treasurer. 

■3. I'he Attorney-General. 

4. The State Superintendent. 

5. The Railroad Commissioner . 

6. The Insurance Commissioner. 

These officers are elected every two years by the voters 
of the state on the same ticket with the governor and 
the lieutenant-governor. 

III. Appointed officers. — There are also a number 
of officers appointed by the governor; these are: 

1. The Commissioner of Labor, Census and Industrial 
Statistics , whose duties are to collect statistics of the 
industries of the state and to enforce the laws regarding 
the construction and management of factories. 

2. The Dairy and Food Commissioner , whose duties 
are to prevent adulterations of dairy products and of all 
■other kinds of foods and drinks. 

3. The Adjutant-General , who has charge of the state 
militia, subject to the governor, and who is also state 




ADMINISTRATIVE. 


100 


[VL 


pension agent, to assist residents of this state in secur¬ 
ing pensions from the United States for military service. 

4. The Quarter-master General, who has charge of the 
supplies for the militia. 

5. The Superintendent of Public Property , who has 
charge of the state capitol and grounds. 

6. The State Treasury Agent, who collects state 
licenses from peddlers and others. 

7. The State Supervisor of Inspectors of Illuminating 
Oils, who has a large number of inspectors. 

8. The State Librarian, who has charge of the law 
library of the state, and who is appointed by the judges 
of the supreme court and the attorney-general. 

IV. State boards. — In addition to these there are 
the following boards: 

1. The Commissioners of Public Lands , consisting of 
the secretary of state, treasurer and attorney-general 
(article X, section 8). 

2. The Pegents of the University of Wisconsin, com¬ 
posed of the state superintendent and twelve persons ap¬ 
pointed by the governor for three years each. 

3. The Board of Pegents of Normal Schools , composed 
of the governor and state superintendent, and nine mem¬ 
bers appointed by the governor for three years each. 
They have charge of the normal schools located at Platte- 
vilie, Whitewater, Oshkosh, Milwaukee, Stevens Point 
and Superior. 

4. The State Board of Health and Vital Statistics , com¬ 
posed of SLwen members appointed by the governor for 
seven years each. 

5. The Commissioners of Fisheries, composed of the 
governor and six persons appointed by him for six years 
each. 

6. The State Board of Control, composed of six mem¬ 
bers appointed by the governor for five years each. 


VI: I] 


STATE OFFICERS. 


101 


They have control of the state charitable and penal in¬ 
stitutions, which are: 

(a) The State Hospital for the Insane, near Madison. 

(b) The Northern Hospital for the Insane, near Oshkosh, 

(c) The Stale Prison, at Waupun. 

(d) The Industrial School for Boys, at Waukesha. 

(e) The School for the Deaf and Dumb, at Delavan. 

(f) The School for the Blind, at Janesville. 

(g) The State School for Dependent Children, at Sparta. 

They also have power to inspect all the charitable, 
penal and reformatory institutions conducted by coun¬ 
ties or cities or b} 7 private societies. 

7. The State Board of Pharmacy consists of five mem¬ 
bers appointed by the governor for a +erm of five years 
each. They examine and license all druggists and drug¬ 
gists 1 clerks. 

8. The State Board of Dental Examiners , who exam¬ 
ine and license all dentists. 

9. The Board of Examiners for Admission to the Bar, 
who examine and license lawyers. 

10. The State Board of Deposits , consisting of the 
governor, the secretary of state, the treasurer and the 
attorney-general, who select certain banks in which to 
deposit state funds and arrange for interest to be paid 
upon them. 

SECTION I. 

STATE OFFICERS. 

There shall he chosen by the qualified electors of the state, at the times and 

places of choosing the members of the legislature, a secretary of state, 

treasurer and attorney-general, who shall severally hold their offices for 

the term of two years. 

All the state officers, including the governor and 
lieutenant-governor, are elected for two years, and the 
-election comes in the even years, together with the elec¬ 
tion for members of congress, and with the election for 
president in the leap years. No qualifications are re- 


102 


ADMINISTRATIVE. 


[VI: 4, 


qnired by this section for the administrative officers- 
But by a decision of, the supreme court in the case of & 
sheriff, the principle of which would apply also to state 
officers, state and county officers must be voters, unless 
it is otherwise provided by law. 


SECTION II. 

THE SECRETARY OF STATE. 

Hie secretary of state shall keep a fair record of the official acts of the> 
legislature and executive department of the state, and shall, when re¬ 
quired, lay the same and all matters relative thereto before either branch 
of the legislature. He shall be ex officio auditor and shall perform such* 
other duties as shall be assigned him by law. He shall receive as a com¬ 
pensation for his services, yearly, such sum as shall be provided by law,, 
and shall keep his office at the seat of government. 

The secretary of state is not required to keep a record 
of the judicial department, because such a record is>- 
kept by the clerk of each of the courts. 

As auditor he must examine the accounts of the treas* 
nrer and also examine the claims against the state. 


SECTION III. 

THE TREASURER AND ATTORNEY GENERAL. 

The powers, duties and compensation of the treasurer and attorney general 
shall be prescribed by law. 

% 

The state treasurer keeps the money and accounts of 
the state; and the attorney general is the lawyer for 
the state. They each have an office in the capitol at 
Madison. 

SECTION IV. 

COUNTY OFFICERS. 

Sheriffs, coroners, registers of deeds, [and] district attorneys, and all other 
county officers , except judicial officers, shall be chosen by the elector * 4 
of the respective counties, once in every two years [and as often u> 


VI: 4 J 


COUNTY OFFICERS. 


103 


vacancies shall happen]. Sheriffs shall hold no other offlco, and be in¬ 
eligible for two years next succeeding the termination of their offices. 
They may be required bylaw to renew their security from time to time; 
and in default of giving such new security, their offices shall be deemed 
vacant, but the county shall never be made responsible for the acts of 
the sheriff. The governor may remove any officer in this section men¬ 
tioned, giving to such [officer] a copy of the charges against him, and an 
opportunity of being heard in his defense. All vacancies shall be filled 
by appointment , and the person appointed to fill a vacancy shall hold 
only for the unexpired portion of the term to which he shall be 
appointed , and until his successor shall be elected and qualified. 

I. Terms of office. — This section was amended in 
18S2, by striking out the words in brackets and insert¬ 
ing those in italics. As it now stands, all county offi¬ 
cers, except county judges, are elected for two years in 
the even numbered years, when congressmen and 
state officers are elected; and their term of office begins 
with the first Monday of January in the odd years. 

II. Vacancies. — All vacancies in county offices are 
filled for the unexpired term. Vacancies in the office 
of county superintendent are filled by appointment by 
the state superintendent; vacancies in the office of clerk 
of the court by appointment by the circuit judge; and 
all other vacancies by appointment by the governor. 

III. Sheriffs. — The office of sheriff is one of great 
responsibility, and the constitution provides very care¬ 
fully against its abuse. 

1st. Sheriffs can hold no other office. 

2d. They are ineligible to the office of sheriff for the next 
two years, and, therefore, cannot use their office to electioneer 
for re-election. 

3d. They may be required to renew their security from time 
to time. 

4th. The county cannot be made responsible for their acts. 
5th. The governor may remove them at any time for cause. 

The supreme court has decided that this section not 
only provides for the election of sheriffs, but deter- 


104 : 


ADMINISTRATIVE. 


[VI: * 


mines that their powers and duties shall not be trans¬ 
ferred to other officers. 

In addition to the county officers named in this sec¬ 
tion, the following are otherwise provided for: 

Clerk of the circuit court (VII, 12). 

County judge (VII, 14). 

County clerk (by statute). 

County treasurer (by statute). 

County surveyor (by statute). 

Superintendent of schools (by statute, under X, 1), 


v 




COURTS. 


VIL1 


JUDICIARY. 


105 


ARTICLE VII. 

JUDICIARY. 


" And I charged you judges at that time saying: Hear the causes between 
your brethren, and judge righteously between every man and his brother, 
and the stranger that is with him. Ye shall not respect persons in judg¬ 
ment, but ye shall hear the small as well as the great; ye shall not be afraid 
of the face of men.”— Moses. 

Sec. 

1 
1 
1 
1 


1. Fob Impeachment. 


Who may be impeached 

Who impeaches. 

Who tries. 

What punishment. 


2. Supreme .. 


Judges 


Jurisdiction 


Terms of court.. 




8 . Circuit ... 


Election. . • • 7 

Term. 7 

Eligibility and salary. 10 

Vacancies. 9 

Removable | By impeachment 1 

' By address .... 13 

Appellate... 3 

Original. 8 

Number. 11 

Place. 11 

Clerk of court . 12 

Election. 7 

Eligibility. 10 

Salary. 10 

Vacancies. 0 


Judges 


Jurisdiction 


1 


Removable I Impeachment 1 
< By address .... 13 

Appellate. 8 

Original. 8 


Circuits. 

Terms of court.. 


4. Probate. 

5. Municipal and County — 

6. Court Commissioners. 

7. Justices of the Peace- 

8. Tribunals of Conciliation 


8 . Gknkb i Provisions 


Number. H 

Place. 11 

Clerk of court . 12 

. 14 


. 2 

. 

. 23 

’. 15 

. 16 

Style of writs. 17 

Tax on suits. 18 

Testimony in equity court... 19 
Suits may be brought in per¬ 
son or by attorney. 20 

Publication of laws. II 

Code of practice. M 















































106 


JUDICIARY. 


[VII 


The following additional matters pertaining to the judi¬ 
ciary, given in other parts of this constitution, are added 
below: 


10. Jurisdiction Concurrent, on waters that bound the state. IX, 1 

< 1. Common law in force, except as specially 

11. Laws . -] repealed...XIV, 13 


2. Treason defined. 


I, 10 


12. Restrictions 
on Civil 
Cases ........ 


1. Justice to plaintiffs ... 

2. Jury trial guaranteed. 


I, 

I, 


0 

5 


3. Suits against the state. IV, 27 

4. No arrest for debt. I, 10 

5. Exemption laws. I, 17 

6. Privilege of members of the legislature .. IV, 15 

7. In libel suits the jury are judges of both 

law and fact. I, 8 

1. No arbitrary arrest_ I, 8 

2. Power of search lim¬ 
ited . I, 11 

3. Accused must know the 

charge. I, 7 

4. Bail. I, 3 

5. Excessive bail forbid¬ 
den. L 6 

6. Habeas corpus. I, 3 

7. Privilege of members of 
the legislature, IV, 15 and 16 


Before trial. 


If. Restrictions 
on Criminal - 
Cases. 


On trial . . . . 


After trial 


' 1. Speedy and public trial, I, 7 

2. By impartial jury. I, 7 

3. Where the offense was 

committed. f, 7 

4. No one a witness against 

himself. I, 8 

. 5. Can cross-examine op¬ 
posing witnesses. I, 7 

6. Can subpoena his own 

witnesses. I, 7 

7 No witness incompetent 
because of his relig 

ious belief. I. 1? 

■ 8. Counsel allowed. I, 7 

’ 1. Write of error .......... T & 

• 2. Cruel and unusual puu 

, ishment forbidden. . i, t 































VII: 1.] 


IMPEACHMENTS. 


107 


SECTION I. 

IMPEACHMENTS. 

The court for the trial of impeachments shall be composed of the senate. 
The house of representatives shall have the power of impeaching al? 
civil officers of this state, for corrupt conduct in office, or for crimes and 
misdemeanors; but a majority of all the members elected shall concur 
in an impeachment. On the trial of an impeachment against the gov¬ 
ernor, the lieutenant governor shall not act as a member of the court. 
No judicial officer shall exercise his office after he shall have been im¬ 
peached, until his acquittal. Before the trial of an impeachment, the- 
members of the court shall take an oath or affirmation truly and im¬ 
partially to try the impeachment, according to evidence; and no person 
shall be convicted without the concurrence of two-thirds of the members 
present. Judgment in cases of impeachment shall not extend further 
than to removal from office, or removal from office and disqualification 
to hold any office of honor, profit or trust, under the state; but the party 
impeached shall be liable to indictment, trial and punishment according 
to law. 

/ 

I. An impeachment trial.— An impeachment trial 
is not a common criminal trial; it is a political trial. 
The offenses which can be tried are political offenses; 
the persons who can be tried are political officers, and 
the only punishments which can be imposed are politi¬ 
cal punishments. And, therefore, the court which tries 
them is the highest political body in the state. But the 
trial is carried on according to the usual forms and 
methods of higher courts of law, for the senate is then 
sitting as a court and not as a legislative body. 

II. The power to impeach.— The name, house of rep¬ 
resentatives, evidently stands for the assembly, by an un¬ 
usual piece of carelessness in the framers ot the 
constitution. The lower house of the legislature has 
the power of impeachment, because it represents the 
people more directly than any other part oi the state 
government, being elected every year. An impeach¬ 
ment by the assembly answers to a presentment by a 
grand jury in criminal cases. It puts the person im- 


108 


JUDICIARY. 


[VII: 1. 


peached upon his trial; but it does not necessarily fol¬ 
low because an officer is impeached that he is therefore 
convicted. 

It is a common mistake to talk of the impeachment 
of an officer as if that were the same as conviction. 

III. Who can' be impeached. — The persons who 
can be impeached are the civil officers of the state. 
Military officers cannot be impeached; but they can be 
tried by court martial and cashiered for corrupt conduct 
in office. Nor can members of the legislature* be im¬ 
peached. They are not officers of the state, but repre¬ 
sentatives of the people.* 

Senators and assemblymen can be expelled for the 
same offenses for which civil officers can be impeached. 

Judges may be impeached, but they may also be re¬ 
moved by address. (VII, 13.) 

IV. For what offenses. — An officer may be im¬ 
peached for corrupt conduct in office, or for crimes and 
misdemeanors which show that he is not a fit person to 
be entrusted with office. Treason, bribery, gross neglect 
of duty, direct disobedience of the laws, and the like, 
would be considered corrupt conduct in office. 

The crimes and misdemeanors for which an officer 
may be impeached are not exactly defined by the con¬ 
stitution, and it was not intended they should be. The 
assembly must decide upon each case that comes up, 
whether it is worth} 7- of impeachment or not; and the 
senate, whether the person impeached deserves to be 
removed from office or not. 

V. The lieutenant governor does not preside.— 
The lieutenant governor presides over the senate at all 


* The United States senate decided on an impeachment trial in 1799, that 
& senator is not a civil officer of the United States, and cannot be im¬ 
peached . There is no instance in E ngland or America of a legislator be in* 
Impeached. 



VII: 1.] 


IMPEACHMENTS. 


109 


impeachment trials, except when the governor is im¬ 
peached. In that case, he has a direct interest in the 
result of the trial, for he would become governor if the 
governor should be removed; and, moreover, he is then 
acting governor, and cannot perform both functions at 
once. (V, 7.) When the governor is impeached, or if 
for any other cause the lieutenant governor does not 
preside, the senate elects a president from its own 
members. 

• * 

VI. Impeachment suspends the governor and 
judges. — Under the United States constitution im¬ 
peached officers still continue to act in their offices until 
removed by the sentence of the senate, and the same 
rule holds in Wisconsin. An exception, however, is 
made with regard to judicial officers, and also with re¬ 
gard to the governor. (V, 7.) 

VII. Two-thirds required to convict. — The state 
constitution follows the United States constitution in 
requiring a two-thirds majority to convict. Otherwise 
a partisan majority might impeach and remove a gov¬ 
ernor or other officers for party purposes. 

VIII. What punishment can be inflicted.— The 
persons who can be tried are officers of the state. They 
can be tried only for political offenses, and their pun¬ 
ishment is political. It may only be removal trom of¬ 
fice, and it may also be disqualification for office ever 
after. This disqualification can be removed at any time 
by act of the legislature. If the offense is also a crim¬ 
inal offense as well as a political offense, the officer may 
be tried by the ordinary courts and punished at any 
time. 

The state has, therefore, three methods of procedure 
against an unworthy officer: 

1st. He can be impeached and removed from office,,. 


V 


HO JUDICIARY. [VII: 2. 

and also disqualified from holding any office under the 
state. 

2d. If guilty of a criminal offense, he can be indicted, 
tried and punished like any other criminal. 

3d. If* he has wrongfully taken money or property 
from the state, it can be recovered by a civil process. 

There has been but one impeachment trial in this 
state, that of a judge, and he was not convicted. 


SECTION II. 

* 

COURTS OF THE STATE 

The judicial power of this state, both as to matters of law and equity, shall 
be vested in a supreme court, circuit courts, courts of probate and in 
justices of the peace. The legislature may also vest such jurisdiction 
as shall be deemed necessary in municipal courts, and shall have power 
to establish inferior courts, in the several counties, with limited civil 
and criminal jurisdiction. Provided , that the jurisdiction which may 
be vested in municipal courts shall not exceed, in their respective mu¬ 
nicipalities, that of circuit courts in their respective circuits, as pre¬ 
scribed in this constitution; and that the legislature shall provide as 
well for the election of judges of the municipal courts as of the judges 
of inferior courts, by the qualified electors of the respective jurisdic¬ 
tions. The term of office of the judges of the said municipal and infe¬ 
rior courts shall not be longer than that of the judges of the circuit 
courts. 

In England and in some of the states of our Union, 
there are two sets of courts to try two classes of cases, 
called law cases and equity cases. The same courts try 
both classes of cases here. (See sec. 19.) 

The legislature has established police courts in sev¬ 
eral cities, by their charters, and an inferior court in 
each county, with powers in most counties much less 
than those of circuit courts, but with probate powers in 
addition. (See sec. 11.) These county judges are 
elected for a term of four years each. 


vil: 8.J POWERS OF THE SUPREME COURT. 


Ill 

The judicial power of the state is vested in the courts 
named in this section, and in these alone. 

The courts of this state are: 

1. The supreme court. 

2. Circuit courts. 

3. County courts. Probate courts have been merged into 
county courts under section 14. 

4. Municipal courts. 

5. Justices’ courts. 

The supreme court is composed of five judges. All 
the other courts consist of one judge, or justice of the 
peace. 


SECTION III. 

POWERS OE TIIE SUPREME COURT. 

The supreme court, except in cases otherwise provided in this constitution, 
shall have appellate jurisdiction only, which shall be co extensive with 
the states but in no case removed to the supreme court shall a trial by 
jury be allowed. The supreme court shall have a general superintend¬ 
ing control over all inferior courts; it shall have power to issue writs o/ 
habeas corpus, mandamus, injunction, quo warranto, certiorari and 
other original and remedial writs, and to hear and determine the same. 

I. Original and appellate jurisdiction. — The 
only cases in which the supreme court has original 
jurisdiction are those of suits against the state, and in 
issuing the original writs named below. 

In all other cases suits must first be brought before some in¬ 
ferior court; and an appeal may be taken from its decision to 
the next higher court, and so on until it reaches the supreme 
court, where a decision is final. 

The decisions of the supreme court in regard to the law of 
any case are always followed by all lower courts in all like 
cases, and are usually followed afterward by the suy reme 
court, though not always. The decisions of the supreme court 
interpret the law, and, therefore, in a certain sense, the su¬ 
preme court may be said to sometimes make laws. Where a 


112 


JUDICIARY. 


[VII; 8. 


law may be understood to mean several different things, every 
court must decide for itself wliat it really does mean; and as 
the supreme court is the final and highest authority, its decis¬ 
ion decides finally the meaning of the law in dispute, unless 
that decision is afterward reversed by the supreme court itself. 

A similar power is that of deciding laws to be unconstitu¬ 
tional. All the statute laws of the state are, of course, sub¬ 
ject to the constitution of the state, and to the constitution 
and statutes and treaties of the United States. Upon any case 
coming before any court in the state, the plea may be made by 
the lawyers on either side, that a certain law or part of a law 
bearing on that case is unconstitutional, or that it is an en¬ 
croachment on the supreme authority of the United States, as 
expressed in its constitution, statutes or treaties with foreign 
powers. If the plea is sustained by the court, and the decision 
is not reversed by a higher court, that law or part of law 
is ever after regarded in all courts as void and good for 
nothing. A decision in the supreme court is the highest au¬ 
thority upon the constitutionality of a state law. 

II. The power to issue writs. — The supreme court 
exercises this general control over inferior courts, by 
reason of the right of appeal and of writs of error 
(I, 21), and by reason of the writs named in this sec« 
tion. 

In ordinary cases, however, the supreme court refuses 
to grant these writs, and refers the petitioners to the 
circuit court. It is only in exceptional cases that the 
supreme court will grant the writs named above. 

These writs are all named from the Latin words with which 
they begin, for these writs were formerly in England issued 
in Latin. Those mentioned here are the most important writs 
used by the courts to secure justice, and are used as follows: 

The writ of habeas corpus (you may have the body) com¬ 
mands the person to whom it is issued to produce the body of 
some person whom it is charged he holds in unjust confinement, 
before the court, and show cause why he should not be 
liberated. 

The writ of mandamus (we command) commands officers* 


VII: 4.] ORGANIZATION OF SUPREME COURT. H3 


and others to do certain things which it is their duty to do. 
For instance, if the secretary of state should refuse to give a 
certificate of election to a member of the legislature duly 
elected, and he could not take his seat because of it, the cir¬ 
cuit or supreme court would issue a writ of mandamus and 
compel the certificate to be given. 

A writ of injunction forbids certain things to be done, which, 
if done, would cause injury which could not be remedied'by 
the law, or commands certain things to be done, the neglect of 
which would cause an injury which could not be remedied. 

A writ of quo warranto i^by what warrant) is one which calls 
upon a person or corporation to show by what authority he or 
it exercises certain powers. For instance, on the first of Jan¬ 
uary, 1856, the governor elect sued out a writ of quo warranto 
in the supreme court, against his predecessor, who refused to 
give up the office, and was put into the office by the power of 
the supreme court. 

The question which of two contestants is entitled to hold a 
certain office has been several times tried before the supreme 
court by the use of this writ. 

A writ of certiorari (to be certified of) is very much the same 
thing as a writ of error. When a higher court is certified or 
assured that justice is not being done in some case in a lower 
court, such a writ will be issued, and the case removed to the 
higher court. This writ compels the lower court to send up 
the record of a case that has been tried or is being tried in the 
lower court; and then the higher court tries the case upon the 
facts shown in the record. 

SECTION IY. 

ORGANIZATION OF THE SUPREME COURT. 

The supreme court shall consist of one chief justice and four associate 
justices, to be elected by the qualified electors of the state. The legis¬ 
lature shall, at its first session after the adoption of this amendment, 
provide by law for the election of two associate justices of said court, 
to hold their offices respectively for terms ending two and four years 
respectively, after the end of the term of the justice of the said court 
then last to expire. And thereafter the chief justice and associate jus¬ 
tices of said court shall be elected and hold their offices respectively for 
the term of ten years. 

8 


JUDICIARY. 


[VII: 5, 6. 


1 U 

This section is given as amended November 6, 1877. 

There have been three different organizations of the 
supreme court of this state: 

1. From 1848 to 1853, the supreme court consisted of 
all the judges of the circuit courts meeting as one body, 
four being necessary to a quorum. 

2. From 1853 to 1878, it consisted of a chief justice 
and two associate justices, elected for six years each, so 
that one of them was elected every two years. 

3. Since 1878, it has consisted of one chief justice and 

four associate justices, to be elected for ten years each, 
so that one of them is elected every two years. But in 
order to start right, it is provided: (a) That the terms of 
the judges in office in 1878 should expire as usual; that 
is in 1879, 1881 and 18S3. (b) That two new associate 

justices should be elected in 1878, to hold office, one 
for two years after the end of the longest term, that is, 
till 1885, and the other, two years more, till 1887. 
(c) And that thereafter the judges of the supreme court 
should be elected for a term of ten years each. Vacan¬ 
cies, of course, are to be filled only for the unexpired 
term. (Sec. 19.) 

Supreme judges are elected at the spring election 
and take office the first Monday of January. 


SECTIONS V* AND VI. 


JUDICIAL CIRCUITS. 


The legislature may alter the limits, or increase the number of circuits, 
making them as compact and convenient as practicable, and bounding 
•■hem by county lines, but no such alteration or increase shall have the 
effect to remove a judge from office. In case of an increase of circuits, 
the judge or judges shall be elected as provided in this constitution, and 
receive a salary not less than that herein provided for judges of the 
circuit court. 


i a Ii S . e< ; ti0n 1 ar , r ? n g ed what should be the five judicial circuits, until the 
legislature should change them. It is no longer in force, and is omitted 





Til: 7.] 


CIRCUIT JUDGES. 


115 


The legislature has frequently altered and increased 
the circuits. The counties composing the circuits and 
the judges of each can be learned from any legislative 
manual. 

SECTION VII. 

/ 

CIRCUIT JUDGES. 

®\)r each circuit there shall be a judge chosen by the qualified electors 
therein, who shall hold his office as is provided in this constitution, and 
until his successor shall be chosen and qualified; and after he shall have 
been elected, he shall reside in the circuit for which he was elected. 
[One of said judges shall be designated as chief justice, in such manner 
as the legislature shall provide. And the legislature shall, at its first 
session, provide by law as well for the election of as for classifying the 
judges of the circuit court, to be elected under this constitution, in such 
a manner that one of said judges shall go out of office in two years, one 
in three years, one in four years, one in five years and one in six years, 
and thereafter the judge elected to fill the office shall hold the same for 
six years.]* 

Every circuit judge must live in bis own circuit, be¬ 
cause there are a great many writs and processes that 
he may have to issue when he is not holding court, and 
it would be very inconvenient to go out of the circuit 
after him, to have a writ issued. 

Judges are now always elected for six years, unless it 
is to fill a vacancy, when they are elected for the rest of 
the term of the judge whose place is to be filled. (Sec. 9.) 

The reason for having the terms of office of circuit 
judges expire at different times, was because the circuit 
judges constituted the supreme court. (See section 4.) 
Circuit judges are now elected for six years each, and 
not all at the same time. 

♦The words in brackets became obsolete when a separate supreme court 
was organized. 




116 


JUDICIARY, 


[VII: fc 


SECTION VIII. 

POWERS OE CIRCUIT COURTS. 

he circuit courts shall have original jurisdiction in all matters, civil and- 
criminal, within this state, not excepted in this constitution, and not 
hereafter prohibited by law, and appellate jurisdiction from all inferior- 
courts and tribunals, and a supervisory control over the same. They 
shall also have the power to issue writs of habeas corpus, mandamus, 
injunction, quo warranto, certiorari, and all other writs necessary to 
carry into effect their orders, judgments and decrees, and give them a 
general control over inferior courts and jurisdictions. 

All important cases begin in some circuit court; small 
cases begin before a justice of the peace, or a police 
magistrate, or a county judge, and may be appealed to> 
the circuit court, or carried up on a writ of error or of 
certiorari^ if either party is aggrieved at a decision made 
in the lower court. 

Each circuit court has jurisdiction in its own district, and in 
that only, except in two cases: 

1st. Crimes and misdemeanors committed on lake Michigan, 
Lake Superior, Lake Winnebago and the Mississippi and St. 
Croix rivers, may be tried in the courts of any county that 
borders on them. (See comments on IX, 1.) 

2d. Cases may be changed from one county to another, 
one circuit to another, when it is likely that the triivl would 
not be fair in the county or circuit where they were begun.. 
This is called a change of venue. (See I, 7.) 


SECTION IX. 

VACANCIES AND ELECTIONS. 

When a vacancy shall happen in the office of judge of the supreme or cii 
cult courts, such vacancy shall be filled by an appointment of the gov 
ernor, which shall continue until a successor is elected and qualified, 
and when elected, such successor shall hold his office the residue of the 
unexpired term. There shall be no election for a judge or judges at 
any general election for state or county officers, nor within thirty dayfc 
either before or after such election. 


117 


; 





VII: 10.J SALARIES AND QUALIFICATIONS. 

I. Vacancies. — A vacancy may occur in a judgeship 
by the death or resignation of the judge, by his accept¬ 
ing any other office whatever, by his removing his resi¬ 
dence, if a circuit judge, outside his circuit; and if a 
supreme judge, outside the state; or, by his removal 
from office by impeachment or address. If a judge is 
impeached by the assembly, he is suspended from his 
office until his trial is through. If not convicted, he 
resumes his office. 

II. Elections. — The state and county elections are 
held in the fall. The election of judges of the supreme 
court and circuit court are held in the spring at the 
town elections. The reason of this is, so that the 
political and party feeling which is rife at the state and 
county elections, should not influence the nomination 
or election of the judges. They ought to be elected 
for their fitness for the place, and not for their party 
services. 


SECTION X. 

SALARIES AND QUALIFICATIONS. 

®ach of the judges of the supreme and circuit courts shall receives salary, 
payable quarterly, of not less than one thousand five hundred dollars 
annually; they shall receive no fees of office, or other compensation 
than their salaries; they shall hold no office of public trust, except a 
judicial office, during the term for which they are respectively elected, 
and all votes for either of them, for any office except a judicial office, 
given by the legislature or the people, shall be void. No person shall be 
eligible to the office of judge who shall not, at the time of his election, 
be a citizen of the United States, and have attained the age of twenty- 
five years, and be a qualified elector within the jurisdiction for which he 
may be chosen. 

I Salaries. — The salary of circuit judges is now 
$3,000; that of judges of the supreme court, $5,000. 
Judges are forbidden to receive fees, because it might 
♦often influence their decisions upon cases before them. 


JUDICIARY. 


118 


[VII: llo. 


or at least give rise to the suspicion that the decisions- 
were so influenced. 

II. Candidacy for office. — A judge should have- 
no interests of any sort except to render strict and im¬ 
partial justice; his whole time must be given to this. 
Therefore, he is not allowed to hold any other office, or 
even to receive votes for another, other than that 
of judge, while he is a judge. This last provision is 
meant to apply to United States as well as to state officers; 
but it is void so far as it forbids a judge to be a candi¬ 
date for president, vice president, senator or representa¬ 
tive. The United States constitution has prescribed^ 
the qualifications for these positions, and no state con¬ 
stitution can add to or take from them. It has been 
repeatedly settled by both houses of congress, that the 
constitution of the United States having fixed the qual- 
fications of members, no additional qualification can 
rightfully be required by the states. 

III. Qualifications. — No other state officer need be 
more than twenty-one years old, but a judge must be 
twenty-five years old. He must have lived at least one 
year in the state to be a qualified elector. He must live 
in the state if a judge of the supreme court, and in his 
circuit if a circuit judge, to be a qualified elector in the* 
jurisdiction for which he is chosen. If of foreign birth, 
he must have lived in the United States at least five 
years to be a citizen of the United States. 


SECTION XI. 

TERM OF COURT. 

The supreme court shall hold at least one term annually, at the seat of gow- 
eminent of the state, at such time as shall be provided by law, and the 
legislature may provide for holding other terms, and at other places, 
when they may deem it necessary. A circuit court shall be held at least; 


VII: 12.] CLERK OF THE CIRCUIT COURT. 


119 


twice in each year, in each county of this state organized for judicial 
purposes. The judges of the circuit court may hold courts for each 
other, and shall do so when required by law. 


I. Terms of court. — The terms of the supreme 
court are held twice a year at Madison in the capitol. 

The terms of the circuit court are always held at the 
county seat of each county. Four terms are held in 
Milwaukee county and three in several other counties. 
Two terms are held in all the others, except where the 
county is new and thinly populated. In that case, the 
legislature attaches it to some neighboring county for 
judicial purposes, and all cases are tried at the county 
seat of the latter county. 

II. Judges hold court for each other. — If for 
any r ?ason a judge cannot hold court at a certain time 
and place, he may get some other judge to hold court 
for him at that time and place. This is occasionally 
necessary from the sickness of the judge or other 
tause. 


SECTION XII. 
clerk of the circuit court. 

lh* re shall be a clerk of the circuit court chosen in each county organized 
for judicial puiposes, by the qualified electors thereof, who shall hold 
his office for two years, subject to removal, as shall be provided by law. 
In case of a vacancy, the judge of the circuit court shall have the 
power to appoint a clerk, until the vacancy shall be filled by an elec¬ 
tion. The clerk thus elected or appointed shall give such security as 
the legislature may require; [and when elected, shall hold his office for 
a full term.] The supreme court shall appoint its own clerk, and the 
clerk of the circuit court may be appointed clerk of the supreme court. 

The clerk of the circuit court in each county is elected 
for two years, with the other county officers, at the gen¬ 
eral election. 

Where a county u not organized for judicial pur¬ 
poses, it is attached k> bcmo neighboring county for 


JUDICIARY. 


120 


[YU: 13. 


judicial purposes, and the clerk of the court in that 
county is clerk of the court for both. 
j, The clerk of the court may be removed by the cir¬ 
cuit judge at any time; but he must have a copy of the 
charges against him, and an opportunity to be heard in 
his own defense. 

The clerk of the supreme court is appointed by the 
court itself. 

SECTION XIII. 


REMOVAL BY ADDRESS. 

Any judge of the supreme or circuit court may be removed from office by 
address of both houses of the legislature, if two-thirds of all the mem¬ 
bers elect to each house concur therein, but no removal shall be made 
by virtue of this section, unless the judge complained of shall have 
been served with a copy of the charges against him as the ground of 
address, and shall have had an opportunity of being heard in his de¬ 
fense. On the question of removal, the ayes and noes shall be entered . 
on the journals. 


This is a shorter method of removing a bad judge 
than by impeachment; but it requires a larger majority 
of the legislature to do it. A removal by impeachment 
requires a majoritv of all the members elected to the 
assembly, and two-thirds of all present in the senate. 
While a removal by address requires two-thirds of all 
the members elected to each house. But in case of a 
flagrant offense, this saves the long formalities of a 
trial. Substantial justice is provided for, in giving the 
accused judge a copy of the charges against him, and 
allowing him to be heard in his defense, and in requir¬ 
ing the members to vote by ayes and noes. The address 
is made to the governor, who thereupon removed the 
judge and appoints some one to fill the vacancy ihu* 
made. No judge has ever been thus removed 


VII: 15.] 


JUSTICES OF THE PEACE. 


121 


SECTION XIY. 

PROBATE JUDGE. 

There shall be chosen in each county, by the qualified electors thereof, a 
judge of probate, who shall hold his office for two years, and until his 
successor shall be elected a^id qualified, and whose jurisdiction, powers 
and duties shall be prescribed by law. Provided , however , that the 
legislature shall have power to abolish the office of judge of probate in 
any county, and to confer probate powers upon such inferior courts as 
may be established in said county. 

The jurisdiction of probate judges extended to all 
cases of wills and inheritance of property, and guard¬ 
ianship of moneys, and administration of the estates of 
deceased persons. But all probate powers are now con¬ 
ferred upon the county judges, under section 2. 

SECTION XV. 

JUSTICES OF THE PEACE. 

The electors of the several towns, at their annual town meetings, and the elect¬ 
ors of cities and villages, at their charter elections, shall, in such manner 
as the legislature may direct, elect justices of the peace, whose term of 
office shall be for two years, and until their successors in office shall be 
elected and qualified. In case of an election to fill a vacancy occurring 
before the expiration of a full term, the'justice elected shall hold for 
the residue of the unexpired term. Their number and classifications 
shall be regulated by law. And the tenure of two years shall in no wise 
interfere with the classification in the first instance. The justices thus 
elected shall have such civil and criminal jurisdiction as shall be pre¬ 
scribed by law. 

I. Election. — There are four justices of the peace 
elected in every town, two each year, at the spring elec¬ 
tion. If there is a vacancy for any cause, it is filled at 
the next spring election. In villages and cities their 
number differs, but they are all elected for two years 
and at the spring election. 

II. Jurisdiction - .— Justices have jurisdiction any- 


122 


JUDICIARY. 


[VII: 17. 


where in their county in civil suits in all cases where 
the value in controversy is less than two hundred dol¬ 
lars, and in criminal cases in minor offenses. The sen¬ 
tence of a justice of the peace can be appealed from to 
the next higher court in all cases. 

SECTION XVI. 

TRIBUNALS OF CONCILIATION. 

The legislature shall pass laws for the regulation of tribunals of concilia¬ 
tion, defining their powers and duties. Such tribunals may be estab¬ 
lished in and for any township, and shall have power to render judgment, 
to be obligatory on the parties, when they shall voluntarily submit their 
matter in difference to arbitration, and agree to abide the judgment, or 
assent thereto in writing. 

The legislature has established no regular tribunals of 
conciliation. But the law allows parties to a civil suit r 
who choose to do so, to submit their difference to arbi¬ 
trators, chosen by both of them. These arbitrators are 
for that particular case a “ tribunal of conciliation.” 

This section of the constitution evidently means more 
than this, and the legislature has neglected its duty in 
not establishing these u tribunals of conciliation ” in 
every township. If such tribunals were established, 
half the law-suits, with the expenses and hatred involved 
in them, would be saved. 

SECTION XVII. 

THE FORM OF WRITS AND PROCESSES 

The style of all writs and process shall be, “ The state of Wisconsin.” All 
criminal prosecutions shall be carried on in the name and by the author¬ 
ity of the same; and all indictments shall conclude against the peace 
and dignity of the state. 

Thus, every constable and justice of the peace rep¬ 
resents the state of Wisconsin within his own jurisdio 


VII: 19.] 


LAW AND EQUITY. 


123 


tion. And the sovereign authority of the state is 
extended to every official action of the officers of the 
law throughout the state. 

Every writ and process must begin with the words 
u The state of Wisconsin,” and every indictment, after 
stating the offense with which the accused is charged, 
must conclude with the words “against the peace and 
dignity of the state of Wisconsin.” 


SECTION XVIII. 

TAX ON SUITS. 

<,Tie legislature shall Impose a tax on all civil suits commenced or prose¬ 
cuted in the municipal, inferior, or circuit courts, which shall constitute 
a fund to be applied toward the payment of the salary of the judges. 

The justices of the peace and police magistrates are 
paid by the fees they receive. The circuit judges re¬ 
ceive a salary. (Sec. 10.) A tax of $1.00 is levied on 
every civil suit in a circuit court. 

* 

SECTION XIX. 

LAW AND EQUITY. 

The testimony in causes in equity shall be taken in like manner as in cases 
at law; and the office of master in chancery is hereby prohibited. 

The distinction between common law and equity is in 
form abolished by the code of the state, but still there 
are differences in substance well understood by lawyers, 
but too many and too intricate to admit of a definition 
or description in the limits of this work. The office of 
master in chancery in those states in which there are 
separate courts of equity, answers to the office of court 
commissioner in courts of law. Under the constitution, 


124 


JUDICIARY. 


[VII: 21. 


the court commissioners perform most of the duties of 
masters in chancery. The practice of law is greatly 
simplified by this, and many of the abuses of the Eng¬ 
lish courts of chancery are abolished. 

SECTION XX. 

THE RIGHT TO HAYE LAWYERS. 

Any suitor In any court in this state shall have the right to prosecute or de¬ 
fend his suit either in his own proper person or by an attorney or agent 
of his choice. 

This is a similar provision for civil suits to that made 
for criminal cases in article I, section T. Only in crim¬ 
inal cases a lawyer will be furnished by the court, if the 

» ■ 

defendant is too poor to pay one; but in civil cases each 
party must pay his lawyer or go without. But every 
man has a right to be his own lawyer if he chooses. 

SECTION XXI. 

PUBLICATION OF THE LAWS 

The legislature shall provide by law for the speedy publication of all statute 
laws, and of such judicial decisions made within the state, as may be 
deemed expedient. And no general law shall be in force until pub¬ 
lished. 

It would not be right to punish people for disobeying 
laws they have no means of knowing. The laws passed 
at each session are published first in the official state 
newspaper, and afterwards in nearly every newspaper in 
the state, and are also published as a book for the libra¬ 
ries of lawyers. 

The decisions of the supreme court are regulariy 
published in a series of volumes. These are published 
because they have the force of law; being interpreta¬ 
tions of the law which are accepted by all the courts of 
the state. 


VII: 23.J 


COURT COMMISSIONERS. 


125 


SECTION XXII. 

THE CODE. 

The legislature, at its first session after the adoption of this constitution, 
Miall provide for the appointment of three commissioners, whose duty 
it shall be to inquire into, revise and simplify the rules of practice, 
pleadings, forms and proceedings, and arrange a system adapted to the 
courts of record of this state, and report the same to the legislature, 
subject to their modification and adoption; and such commission shall 
terminate upon the rendering of the report, unless otherwise provided 
by law. " 

Such a commission was appointed, who reported a 
code of practice for the courts of this state, which em¬ 
bodies all the improvements upon the common law 
that are granted by this constitution, and many more. 
This code was adopted, and all the practice of courts in 
this state is in accordance with it. The design of the 
code is to do away with technicalities in the practice of 
the courts as far as possible, except such as are needed 
to secure the ends of justice. 


SECTION XXIII. 

COURT COMMISSIONERS. 

The legislature may provide for the appointment of one or more persona 
in each organized county, and may vest in such persons such judicial 
powers as shall be prescribed by law. Provided , that said power shall 
not exceed that of a judge of the circuit court at chambers. 

These officers are called court commissioners. By 
organized county is meant a county organized for judi¬ 
cial purposes. The judge of each circuit cannot be in 
every county in his circuit at once, and these court 
commissioners act as his deputies. They cannot try 
cases, for that is reserved for the judge at the regular 
term of court. But they have all the powers of a 
court of chambers, that is, of a judge when he is not 
bolding a regular court. 


126 


FINANCE. 


[VIII: U 


ARTICLE VIII. 


FINANCE. 

"Anri mortgaged states their grandsires’ wars regret, 
From age to age in everlasting debt.”—J ohnson. 


Taxation. 


APPB.OPniA.TION.. 


Public Debt 


Beo. 

.. 1 

5 
5 
3 

2 


Uniform. 

Armiinl j For expenses of ensuing year. 

' For deficiency of preceding year 

Money to be paid only on appropriation. 

Restrictions on payment of claims. 

Restrictions on bills creating debts and taxes.. 6 and 8 

{ For extraordinary expenditures 

Never to exceed $100,000. 

To be paid in five years. 

War debt. 7 

No other debt to be contracted 4 

Credit of the state never to be 

loaned. 3 

No debt for internal improve¬ 
ments . 10 

No scrip to be issued except for 
constitutional debts. 9 


Prohibitions. 


SECTION I. 

TAXATION UNIFORM. 

The rule of taxation shall be uniform, and taxes shall be levied upon such 
property as the legislature shall prescribe. 

To make taxation uniform three things are needed: 
First , that the same things should be taxed and the 
same things exempt from taxation all over the state; 
which is the case. 

Second , that the value of property should be as¬ 
sessed alike; and this is done as nearly as possible, 
though it is never done perfectly. 

Third , that the percentage of taxation should be the 
same; which is the case. All state taxes are divided 
equally upon the assessed valuation of the wnole state. 


a o> a 

















VIII: a.J 


THE CREDIT OF THE STATE. 


127 


all county taxes upon the assessed valuation of each 
county, and all town, village and city taxes upon the 
assessed valuation of the town, village or city. 

SECTION II. 

APPROPRIATIONS. 

No money shall be paid out of the treasury except in pursuance of an ap 
propriation by law. No appropriation shall be made for the payment 
of any claim against the state , except claims of the United States and 
judgments, unless filed within six years after the claim accrued.* 

I. Appropriations. — That is, the state treasurer has 
no right to pay out any money, except as he is author¬ 
ized to do so by the legislature. There are certain reg¬ 
ular expenses of the state government for which an 
appropriation has been made once for all. These ex¬ 
penses are paid yearly without any special appropria¬ 
tion; other appropriations are made when needed. 

II. Claims. — The object of this amendment is to cut 
off certain old claims which had already been paid. 
Claims of the United States can still be paid. Any 
private claim can still be sued in the courts. If the 
courts allow such a claim, it becomes a judgment 
against the state, which must then be paid by an ap¬ 
propriation. 

SECTION IIL 

THE CREDIT OF THE STATE. 

The credit of the state shall never be given or loaned in aid of any individ¬ 
ual, association or corporation. 

The constitution wisely prohibits the state from lend¬ 
ing: its credit. Some of the states of our Union which 
have lent their credit to railroads and other corpora¬ 
tions have had to pay the debts of these concerns, caused 
by their mismanagement and final bankruptcy. 


* The words in italics were added November 6,1877. 




I 


128 FINANCE. [VIII: 6.1 

SECTION IV. 

DEBTS OF THE STATE. 

The state Khali never contract any public debt, except In the cases and 

manner herein provided. 

The provisions of the constitution which follow, re¬ 
lating to the state debt, are very wise. They have kept 
our state more free from debt than any other state of 
our Union. 

SECTION V. 

ANNUAL TAX. 

The legislature shall provide for an annual tax sufficient to defray the esti¬ 
mated expenses of the state for each year; and whenever the expenses- 
of any year shall exceed the income, the legislature shall provide for 
levying a tax for the ensuing year, sufficient, with other sources of in¬ 
come, to pay the deficiency, as well as the estimated expenses of such- 
ensuing year. 

The ordinary expenses of each year must be paid by 
the year’s taxes. They cannot be made a debt upon 
the state. But if, for any cause, there should be a 
deficit in any year, it must be paid by the taxes of the 
next year. The deficit must not go on increasing from 
year to year. 

SECTION VI. 

RESTRICTIONS ON DEBTS. 

For the purpose of defraying extraordinary expenses, the state may con¬ 
tract public debts; but such debts shall never in the aggregate exceed 
one hundred thousand dollars. Every such debt shall be authorized by 
law, for some purpose or purposes to be distinctly specified therein; and' 
the vote of a majority of all the members elected to each house, to be 
taken by yeas and nays, shall be necessary to the passage of such law;, 
and every such law shall provide for levying an annual tax sufficient to 
pay the annual interest of such debt, and the principal within five years 
from the passage of such law, and shall specially appropriate the pro¬ 
ceeds of such taxes to the payment of such principal and interest; and 
such appropriation shall not be repealed, nor the taxes be postponed or 
diminished, until the principal and interest of such debt shall have been 
wholly paid. 




VIII: 7.] 


WAR DEBTS. 


129 


The power of the legislature to run the state in debt 
is very carefully guarded: 

First. No other branch of the government can contract a 
debt. 

Second. The debt can only be for extraordinary expenses, 
not for the regular annual expenses of carrying on the gov¬ 
ernment. 

Third. These debts altogether shall never exceed $100,000 
«. any one time. 

Fourth. If the legislature authorizes such a debt, it must 
be by loan, and the purpose for which the money is to be bor¬ 
rowed must be distinctly stated in the loan. 

Fifth. When the loan is voted in either house, three-fifths 
of the members must be present to make a quorum (sec. 8), 
and a majority of all the members elected must vote for it; 
that is, as the number now stands, in the assembly at least 
fifty-one members must vote for the bill; and in the senate at 
least seventeen. 

Sixth. The vote must be taken by yeas and nays, and, of 
course, the vote of each member recorded on the journal, so 
that any one may know how he voted. 

Seventh. Every law that makes a debt must provide for 
paying it, interest and principal, in five years. 

Eighth. The payment of the debt cannot be put off, but 
the taxes must be raised every year that shall pay it in five 
years at the farthest. 

These provisions of the constitution have kept the 
state from having a heavy debt. There are few states 
of our Union whose credit is so good, and whose debt 
has been so small as Wisconsin. The state is now 
practically free from debt. 

SECTION VII. 

WAR DEBTS. 

The legislature may also borrow money to repel Invasion, suppress Insur¬ 
rection, or defend the state in time of war; but the money thus raised 
phft.ll be applied exclusively to the object for which the loan was author’ 
ised, or to the repayment of the debt thereby created. 

9 


130 


FINANCE. 


[VIII: 8. 


War is a very costly luxury, and the expenses of a 
war cannot be paid in the same year, as the ordinary 
expenses of the state government can. The expenses 
of a war must be paid mostly from borrowed money 
Therefore, the constitution allows the legislature tc 
contract a debt for war expenses. But the war must be 
a defensive war. The state cannot carry on an offensive 
war; that is a power which the United States reserves 
to itself. But the state may be obliged to defend itself 
against insurrection by rebels at home or invasion by a 
foreign foe, or may have to prevent invasion by defend¬ 
ing itself beyond its own frontier. In that case the 
state can carry on war. 

The legislature may borrow money to pay the ex¬ 
penses of a defensive war, and thus create a war debt. 
It may also borrow money, if need be, to pay the deot 
when it is due, and thus keep up a debt, which is really 
the same debt with the time of payment extended. 


SECTION VIII. 

THE VOTE OH FIHAHCIAL MEASURES. 

On the passage In either house of the legislature, of any law which 1m* 
poses, continues, or renews a tax, or creates a debt or charge, or make*, 
continues, or renews an appropriation of public or trust money, or re¬ 
leases, discharges, or commutes a claim or demand of the state, the 
question shall be taken by yeas and nays, which shall be duly entered 
on the journal; and three-fifths of all the members elected to such house 
shall in all such cases be required to constitute a quorum therein. 


Every vote upon a question in which money is con¬ 
cerned must be a matter of public record, so that any 
one can tell at any time how any member of the legis¬ 
lature voted upon any such question. Members feel 
their responsibility more when their votes are taken by 
yeas and nays and entered upon the journal. 


▼HI: 10.] INTERNAL IMPROVEMENTS. 


131 


SECTION IX. 

NO DEBTS CONTRACTED EXCEPT BY LEGISLATURE. 

No scrip, certificate, or other evidence of state debt whatsoever, shall be fas- 
sued, except for such debts as are authorized by the sixth and seventh 
sections of this article. 

The state officers have no right to issue certificates of 
debt, or an} T thing that shall bind the state in any way, 
except they are authorized to, do so by a vote of the 
legislature, and the legislature itself has no right to 
authorize any debt except such as are authorized by 
flections 6 and 7, 

SECTION X. 

INTERNAL IMPROVEMENTS. 

\ * 

ffhe state shall never contract any debt for works of internal improvement, 
or be a party in carrying on such works; but whenever grants of land 
or other property shall have been made to the state, especially dedicated 
by the grant to particular works of internal improvement, the state may 
carry on such particular works, and shall devote thereto the avails of 
such grants, and may pledge or appropriate the revenues derived from 
such works in aid of their completion. 

Works of internal improvement are such as railroads, 
canals, roads, bridges, the drainage of swamps, and the 
like. If the state should undertake such works as these 
it would be sure to run into debt; and it would be very 
possible that the money wouid not be wisely expended. 
Experience has shown that private persons and compa¬ 
nies can do such work better than governments can. 

An exception is made where grants have been made 
by the United States, or otherwise, to the state to carry 
on improvements. In that case the state is only a 
trustee to carry out the wishes of the government or 
persons who gave the property. The state has done 
this with the swamp lands given it by the United States. 
Half the. n-oceeds of these are used to drain the other 
rfwamp lands. 


188 


EMINENT DOMAIN. 


[IX: B' 


ARTICLE IX. 

EMINENT DOMAIN AND PROPERTY OF THE STATE- 

(For analysis see article n.) 

SECTION I. 

CONCURRENT JURISDICTION AND FREE NAVIGATION. 

Hie state shall have concurrent jurisdiction on all lakes and rivers border* 
Ing on this state, so far as such rivers or lakes shall form a com¬ 
mon boundary to the state, and any other state or territory now or 
hereafter to be formed and bounded by the same. And the river Missis 
sippi and the navigable waters leading into the Mississippi and St. Law 
rence, and the carrying places between the same, shall be common 
highways, and forever free, as well to the inhabitants of the state as to the 
citizens of the United States, without any tax, impost or duty therefor 

I. Concurrent jurisdiction. —The state has sole 
jurisdiction within its own boundaries on land; no othei 
state has any jurisdiction there. But where a rivei 
or lake makes a part of the boundary of the state, ii 
is not easy to tell where the exact boundary is. It 
saves some trouble and settles some vexatious ques^ 
tions to give all the states that border on Lake Mich¬ 
igan, for instance, each the same jurisdiction anywhere 
on the lake. There is nothing to tax on the lake 
except the ships and boats, and these are taxed where 
they are owned, so that the only things that are af¬ 
fected by the question of jurisdiction, on the lakes and 
rivers, are the crimes and misdemeanors committed on 
these rivers and lakes. These may be tried in the 
courts of any state that border on the lake. So, also, 
with Lake Superior. So, also, with offenses on the 
Mississippi river, when that river forms the boundary 
between this state and Minnesota or this state and 
Iowa; offenses committed on it may be tried in the 




IX: 2.] 


PROPERTY OF TERRITORY. 


133 


courts ot either state. This concurrent jurisdiction on 
Lakes Michigan and Superior, and all rivers that bound 
the state, is given by the acts of congress which ad¬ 
mitted this state and the neighboring states into the 
Union. This concurrent jurisdiction does not depend 
upon this section of the constitution, but would exist 
whether it was mentioned in the constitution or not. 

The state has given the counties bordering on Lakes 
Michigan and Superior and the Mississippi river con¬ 
current jurisdiction for offenses committed on these 
waters; and also to all the counties bordering on Lake 
Winnebago for all offenses committed on that lake. 

II. Free navigation. — The state of Wisconsin guar¬ 
antees by this clause of the constitution, that all the 
waters over which it has control shall be free highways. 
No tolls or duties are charged for any ship or goods 
owned by citizens of the United States. In practice it is 
scarcely worth while for the state of Wisconsin to levy 
tolls or duties on the few foreign ships that come into 
our ports; so that really the navigable waters of the 
state are free for the ships and commerce of all nations, 
so far as the state is concerned. The navigable waters 
of Wisconsin are thus free highways for the commerce 
of all the world, subject only to the duties on foreign 
commerce which congress imposes. 

SECTION II. 

PROPERTY OF TERRITORY GOES TO STATE. 

The title of lands and other property, which have accrued to the territorj 
of Wisconsin, by grant, gift, purchase, forfeiture, escheat, or otherwise, 
shall vest in the state of Wisconsin. 

This section belongs logically under article XIV, 
which regulates the change of Wisconsin from a terri¬ 
tory to a state, and substantially the same thing is given 
ever again in one of the clauses of XIV, 4 


134 


EMINENT DOMAIN. 


[IX: ft. 


SECTION IIL 

EMINENT DOMAIN. 

The people of the state, in their right of sovereignty, are declared to posses® 
the ultimate property in and to all lands within the jurisdiction of the 
state; and all lands, the title to which shall fail from a defect of heirs, 
shall revert or escheat to the people. 

I. Eminent domain. — The right of eminent domain 
is claimed by all civilized governments. The state has 
the ultimate title to all land within its boundaries, and 
can take any land from its owner if it is needed for 
public purposes, only it must pay a fair price for it. 
(I, 13.) This right belonged to the United States, but 
when congress admitted this state to the Union it gave* 
this right of ultimate'sovereignty to the state. 

This right of eminent domain is exercised whenever the 
land needed for any public buildings cannot be purchased, 
whenever a road or street or a public park is laid out, and 
whenever a railroad or canal is constructed. In the latter 
case, the railroad or canal is a public highway; owned and 
constructed by a private corporation, it is true, but operated 
for the public benefit, and liable to be controlled by law or to 
be taken from its owners, should they abuse their trust. Pri¬ 
vate property can be taken for railroads and canals only because 
they are public higliivays. 

This right of eminent domain is the right of a sovereign — 
in this country the sovereign people — and it is meant to be 
used only for the public good. Highways for commerce are 
an absolute necessity of any civilized society. But for land 
transportation artificial highways must be made. These have 
now come to be railways, wherever railways can be built. 
These railways could not be built if they had to buy the right 
of way of each land owner at his own price. The state, 
therefore, veiy justly uses the right of eminent domain to 
take the land needed for railways at a fair price. This is done 
for the public good. But as the practical monopoly of the 
carrying trade enjoyed by the railways is very liable to bo 
misused for the injury of the public, the state has rightly re¬ 
served the right to control these chartered monopolies (XI, 1),, 




IX: 8.] 


EMINENT DOMAIN. 


135 


whenever it is necessary to do so for the public good. They are 
allowed to exercise the sovereign right of eminent domain only 
for the public good. But they do not have this privilege given 
to them without any duties in return. They are to use the great 
powers given to them for the public good. Should they fail 
to do so, the state can limit their powers or destroy them al¬ 
together. They are the servants of the people, the creatures 
of the state, not its masters and rulers. 

II. Escheats.— In accordance with the same right, 
when any one dies and leaves no heirs, his property 
goes to the state. Land only is spoken of in this sec¬ 
tion, but the same principle applies to all property. 

Any property that thus escheats to the people goes 
into the school fund. (X, 2.) 


186 


EDUCATION 


S. OVVK9B3 


a School Fuwd 


1 School Tax . 


4 SCHOOLS 






ARTICLE X. 


EDUCATION. 


1 The common school, oh! let Its light 
Shine through our country’s story; 

Here lies her health, her wealth, her might; 
Here rests her future glory.” 


| State Superintendent 


the 


es- 


Such other officers as the legislature directs... 

1. Lands granted by 

United States. 

2. Property forfeited or 

cheated. 

3. Military exemptions. 

4. Net proceeds of penal fines 

Sources. 5. All unspecified grants to 

the state. 

6. Five hundred thousand 

acres of land. 

7. Five per cent, of the net 

proceeds of United States 
land sales. 

1. Among the towns and cities 

of the state. 

2. In proportion to the school 

population. 

That school 


See. 

h 


Apportioned 


8. Conditions. 


I 


District schools.. 


tax was 
raised .... 
That school 
was main¬ 
tained 
three 
months... 

1. Annual.. 

2. In each town and city. 

8. Not less than half the school fund received_ 

1. Uniform. 

2. Free to persons of school 

age. 

8. Unsectarian. 

Academies and normal schools. 
































X: 1.] SUPERVISION OF PUBLIC INSTRUCTION. 137 


* XJmysBBiTT... 


I. School Land 

COM MISSION KRS 


Soc. 

1. Supported by special grants from the United 

States.. 

2. At or near the capital. 

8. Colleges may be connected with it. 

4 . Unsectarian. . 

{ Secretary of State. \ ' 

Treasurer. > 7 

Attorney General. ' 

2. Shall sell. \ Forcash . 

' On time with mortgages. 

8. Shall withhold land from sale in their discretion 
4. Shall invest the proceeds as the legislature 

directs . 

5. Shall give security. 


8 


SECTION I. 


THE SUPERVISION OF PUBLIC INSTRUCTION. 

The supervision of public instruction shall be vested in a state superintend 
ent, and such other officers as the legislature shall direct. The state 
superintendent shall be chosen by the qualified electors of the state, in 
such manner as the legislature shall provide; his powers, duties and 
compensation shall be prescribed by law. Provided , that his compen¬ 
sation shall not exceed the sum of twelve hundred dollars annually. 

The state officers who have the supervision of public 
instruction are a superintendent of public instruction, 
and county and city superintendents. The state super¬ 
intendent is chosen for a term of two years, at the same 
time as the other state officers. County superintend¬ 
ents are elected for the term of two years, at the gen¬ 
eral election, like other county officers. They examine 
and license teachers, and have the general supervision 
of the schools and teachers in their respective jurisdic¬ 
tions. Several of the larger counties in the state are 
divided each into two superintendent districts. The 
cities have their own systems of school supervision; 
generally under city superintendents, who may or may 
not be the principals of the high schools. The local 
aupervision of schools is in the hands of the district 


















138 


EDUCATION. 


[X: 2 , 


boards, or, where the town system of schools has been 
adopted, in the hands of the town board of education. 

SECTION II. 

THE SCHOOL FUND. 

■^he proceeds of nil lands that have been or hereafter may be granted by 
the United States to this state, for educational purposes (except the 
lands heretofore granted for the purposes of a university), and all 
moneys, and the clear proceeds of all property, that may accrue to the 
state by forfeiture or escheat, and all moneys which may be paid as an 
equivalent for exemption from military duty, and the clear proceeds of 
all fines collected in the several counties for any breach of the penal 
laws, and all moneys arising from any grant to the state, where the pur¬ 
poses of such grant are not specified, and the five hundred thousand 
acres of land to which the state is entitled by the provisions of an act of 
congress, entitled “ An act to appropriate the proceeds of the sale of 
public lands, and to grant pre-emption rights,” approved the fourth day 
of September, one thousand eight hundred and forty-one, and also the 
five per centum of the net proceeds of the public lands to which the 
state shall become entitled on her admission into the Union (if congress 
will consent to such appropriation of the two grants last mentioned), 
shall be set apart as a separate fund, to be called the school fund, the 
interest of which, and all other revenues derived from the school lands, 
shall be exclusively applied to the following objects, to wit: 

1. To the support and maintenance of common schools in each school 
district, and the purchase of suitable libraries and apparatus therefor. 

2. The residue shall be appropriated to the support and maintenance 
of academies and normal schools, and suitable libraries and apparatus 
therefor. 

% 

I. The sources of the school fund.— A very lib¬ 
eral provision is thus made for a school fund. The fol¬ 
lowing are the sources of that fund: 

1. Property which is forfeited or escheated to the state. 
Property escheats to the state when the owner dies without a 
will and without heirs. 

2. Money paid for exemption from military duty. 

3. The net proceeds of all penal fines. 

4. All unspecified grants to the state. 

5. Section sixteen in each township. 

6. The five hundred thousand acres of land first given for 


TI E SCHOOL FUND. 


X: 2.] 


139 


the Rock river canal, and afterwa rd by consent of congress 
given to the school fund. 

7. The five per cent, of the net proceeds of the sale of all 
public lands, first given to the state to build roads and canals. 

8. One-half the proceeds of the swamp lands given to the 
state by congress in 1850 and 1855. This is now set apart as a 
normal school fund. 

Tliis fund is now nearly three million dollars. 

II. Apportionment of the school fund. — The in 
fcerest of the school fund is apportioned to the districts 
which have maintained school six or more months 
during the preceding year. The legislature has power 
under this section of the constitution to furnish libra¬ 
ries and apparatus to the schools out of the school 
fund; but it has not chosen to do so. 

III. State tax. — In 1885 the legislature provided an 
annual state school tax of one mill on the dollar. This 
added to the income of the school fund will make a sum 
of nearly seven hundred thousand annually to be dis¬ 
tributed to those districts which maintain a legal 
school. This is apportioned to these districts according 
to the number of children of school age in each. The 
additional county tax required in section 4 will raise 
the amount to over one million dollars annually to be 
thus apportioned. 

IV. Normal schools. — The normal school fund r 
amounting to about one million three hundred thou¬ 
sand dollars, is administered by the Board of Regents 
of Normal Schools. Some additional appropriations 
are made by the legislature. The fund is used for the 
following objects: 

1. Building and maintaining normal schools. Of 
these there are five, at Platteville, Whitewater, Osh¬ 
kosh, River Falls and Milwaukee. 

2. Conducting teachers’ institutes. 


140 


EDUCATION. 


[X: 3. 


SECTION III. 

COMMON SCHOOLS. 

The legislature shall provide by law for the establishment of district 
schools, which shall be as nearly uniform as practicable, and such 
schools shall be free and without charge for tuition to all children be¬ 
tween the ages of four and twenty years, and no sectarian instruction 
shall be allowed therein. 

I. Reasons for our public schools. — The experi¬ 
ence of all modern nations shows that the people must 
be educated to make the nation strong or fit for free¬ 
dom. The strength of the German empire is in her 
schools and universities. The weakness of some other 
nations of Europe is in the ignorance of the laboring 
classes. We thus need popular education to make and 
keep our nation strong, for “knowledge is power.” 

But we also need popular education to make and keep 
us fit for freedom. Experience has shown that no na¬ 
tion can long be free unless it is intelligent. It is never 
the interest of the majority of the people, anywhere, to 
be oppressed by unjust laws or aristocratic privileges or 
corrupt governments. Where a whole people is intel¬ 
ligent, even if ruled by no higher motive than self- 
interest, they will maintain their freedom against 
military usurpers, corrupt demagogues and wealthy 
classes and corporations. Those who'govern any nation 
should be intelligent, and in this country, where the 
people are the rulers, the people should be intelligent. 

Another reason for popular education is that the in¬ 
herent rights of each individual to liberty and the pur¬ 
suit of happiness (I, 1), guarantied by this constitution, 
may be secured to each one. Every citizen of this state 

should have a fair chance in life secured to him. And 
this can only be given by an education which shall fit 










X: 4.] SCHOOL TAX. 141 

him to perform intelligently the ordinary duties of life, 
and that shall give him the clue to all the knowledge 
possessed by the world. Then if all outside hindrances 
are removed from his pathway, as they are in this coun¬ 
try, each person with this capital of a common school 
education to start with, can make his own place in life, 
and be “ the architect of his own fortune.” 

II. The schools are free. — The common schools 
in this country are free to all persons of school age, as 
they are not in any other country in the world. Here 
the tax-payers educate the children of poor and rich alike, 
and the state thus offers every child an opportunity for 
a fair education. 

III. No sectarian - INSTRUCTION". — No sectarian in- 
struction is allowed in our schools, for two reasons: 
first, because we have several different forms of faith in 
this state, no one of which has a right to have the pow¬ 
erful influence of the schools used in its favor; and sec¬ 
ond, because the experience of our country has shown 
that religion thrives best when it is independent of the 
Btate, asking no favors from it, and hot being controlled 
by it.* 


SECTION IV. 

SCHOOL TAX. 

Each town and city shall be required to raise, by tax, annually, for the sup¬ 
port of common schools therein, a sum not less than one-half the 
amount received by such town or city respectively for school purposes, 
from the income of the school fund. 

This tax is assessed by each county on the towns and 
cities of which it is composed. Towns and cities may 


* “Nor heeds the sceptic’s puny hands, 

While near her school the church spire stands; 

Nor fears the blinded bigot’s ride, _ 

While near her church spire stands her school.” — Whittier. 



f 





142 


EDUCATION, 


[X: 6. 


also raise school taxes. But the greater share of the 
school tax is raised by the school districts, each for its 
own school. 


SECTION Y. 

APPORTIONMENT OF SCHOOL FUND. 

Provision shall be made by law for the distribution of the income ‘of tb» 
school fund among the several towns and cities of the state, for the 
support of common schools therein, in some just proportion to the num¬ 
ber of children and youth resident therein, between the ages cf four and 
twenty years, and no appropriation shall be made from the school fund 
to any city or town for the year in which said city or town shall fail to 
raise such tax, nor to any school district for the year in which a school 
shall not be maintained at least three months. 

The income of the school fund is distributed among 
the towns and cities of the state in proportion to the 
number of persons between four and twenty years old, 
in those districts which have maintained school for Jivs 
months during the preceding year. 


SECTION VI. 

THE STATE UNIVERSITY. 

Provision shall be made by law for the establishment of a state university, 
at or near the seat of state government, and for connecting with the 
same from time to time such colleges in different parts of the state as 
the interests of education may require. The proceeds of all lands that 
have been or may hereafter be granted by the United States to the state 
for the support of a university, shall be and remain a perpetual fund to 
be called the “ university fund,” the interest of which shall be appropri¬ 
ated to the support of the state university, and no sectarian instruction 
shall be allowed in such university. 

I. Organization. — The state university has been 
established at Madison. No colleges in other parts of 
the state have yet been connected with it. The univer¬ 
sity is governed by a board of regents, consisting of the 
state superintendent and twelve Dersons appointed by 


X: 7, 8.J SCHOOL LAND COMMISSIONERS. 


143 


the governor. It is open to both sexes, in all its 
departments. 

II. Income. — In addition to the land grant given by 
congress for the university, congress in 1S62 gave a land 
grant to each state in the Union for agricultural colleges. 
In this state this grant was given to the state univer¬ 
sity for an agricultural college connected with it. In 
addition a state tax is levied each year for the univer¬ 
sity, amounting to over forty thousand dollars. 

III. No sectarian instruction. — No sectarian in¬ 
struction is allowed in the state university for the same 
reason that none is allowed in the common schools. 


SECTIONS VII AND VIII. 

SCHOOL LAND COMMISSIONERS. 

(7) The secretary of state, treasurer, and attorney general shall constitute a 
board of commissioners for the sale of the school and university lands, 
and for the investment of the funds arising therefrom. Any two of said 
commissioners shall be a quorum for the transaction of all business 
pertaining to the duties of their office. 

(B) Provision shall be made by law for the sale of all school and university 
lands, after they shall have been appraised, and when any portion of 
such lands shall be sold, and the purchase money shall not be paid at 
the time of the sale, the commissioners shall take security by mortgage 
upon the land sold for the sum remaining unpaid, with seven per cent. 
Interest thereon, payable annually at the office of the treasurer. The 
commissioners shall be authorized to execute a good and sufficient con¬ 
veyance to all purchasers of such lands, and to discharge any mortgage 
taken as security, when the sum due thereon shall have been paid. The 
commissioners shall have power to withhold from sale any portion of 
such lands when they shall deem it expedient, and shall invest all 
moneys arising from the sale of such lands, as well as all other univar 
gity and school funds, in such manner as the legislature shall provide, 
and shall give such security for the faithful performance of their duties 
as may be required by law. 

The school fund is thus cared for by a board of three 
atate officers, tEnder the direction of the legislature. 


CORPORATIONS. 


144 


CORPORATIONS. 


[XX 


ARTICLE XI. 

CORPORATIONS. 


l. 


*. 


8 . 


This article has been essentially modified by the amendment 
forbidding special legislation, adopted November 7, 1871. 
That amendment, which forms sections 31 and 32 of article IV, 
prohibits the legislature from granting corporate powers or 
privileges by special laws, except to cities, and also prohibits 
the legislature from incorporating any town or village, or 
amending the charter thereof, by a special law. As it now 
stands in the constitution, the subject of corporations may lie 
analyzed as follows: 


Sec 


Corporations .. 


Municipal Cor¬ 
porations _ 


Banes 


1 


Shall be under general laws. 

When general laws will not do. 

Except - And then subject to the revision of 

the legislature. 

Restriction on taking private property. 2 

Legislature shall organize them. 8 

Restriction on debts and taxes. 8 

Legislature has no power to charter till authorized 

by the people .4,5 

Every charter or general law must be submitted to 
the people. 6 


Municipal 


Privatr 


•••••«••• • 


Cities organized by special charter ... . IV, 31 

Towns and villages by general law. IV, 32 

Laws and charters may be revised by 

the legislature. XI 1 

Restriction on ta king private property .. XI, 2 
Restriction on debts and taxes. XI, 3 


Legislature no power to act 
u util authorized by the 

Banks... People.XI - 

No special charter.IV 8 

Ev< 0 ' law must be sub- 

n < ted to the people.XJ I 

Other corporate ',v under general laws.. IS ^ 




























145 


XI: l.j SHALL BE UNDER GENVUVl ,.,iiWS. 


SECTION I. 

CORPORATIONS SHALL BE UNDER GENER, A LAWS 

Corporations without banking powers or privileges may ba formed under 
general laws, but shall not be created by special act, exce Dt for munic¬ 
ipal purposes [and in cases where, in the judgment of the legislature, 
the objects of the corporation cannot be attained under general laws.] 
All general laws or special acts enacted under the provisions of this sec 
tion may be altered or repealed by th6 legislature at any time a/.t er theii 
passage. 

I. Laws must be general. — By the amendment 
adopted November 1,1871, corporate powers cannot now 
be granted by a special law except to cities. All laws 
made in regard to corporations, except city charters, 
must now be general, and apply to all similar corpora¬ 
tions. No special charter can now be given to any cor¬ 
porations, either private or municipal, except to cities. 

II. But may be altered or repealed. — Where 
the legislature of any state has once given corporate 
powers without reserve, they cannot be revoked without 
the consent of the body which receives them.f For 
instance, if the legislature of this state had given some 
railroad extraordinary and even dangerous privileges, 
were it not for this section the legislature could not 
repeal or alter the charter that gave those extraordinary 
privileges except with the consent of the railroad. But 


* The words in brackets were repealed by the amendment to article TV. 
tin the celebrated case of Dartmouth College against Woodward, ho 
which Daniel Webster was attorney for the plaintiff, it was decided by the 
supreme court of the United States that charters are in the nature of a con¬ 
tract between the government and the corporation, and consequently can¬ 
not be altered or repealed by the government without the consent of the 
corporation, under the United States constitution, article I, section 10, which 
forbids states to pass laws impairing the obiigations of contracts. (Wheaton’s 
reports of the United States supreme court, vol. VI, p. 518.) 

But when the constitution of a state reserves the right of repeal, as in 
this section, all such contracts are made and accepted by the corporations 
with the right of repeal or amendment by the legislature as one of the im¬ 
plied conditions of the contract itself, which therefore can be amended or 
repealed by the legislature at its pleasure. (Wis. Reports, vol. HI, pp. 287 
and 611.) 


10 




CORPORATIONS. 


[XI: 3 


by this section the legislature can always control all 
the corporations in the state. 


SECTION II. 


TAKING PRIVATE PROPERTY FOR PUBLIC USE. 


No municipal corporation shall take private property for public use against 
the consent of the owner, without the necessity thereof being first 
established by the verdict of a jury. 


If the proper officers of a city, town or village cannot 
agree with the owner of property which they take for 
public use, as, for instance, when a street is opened, the 
owner can call for a jury, who shall decide what the 
property is worth. 


SECTION III 


RESTRICTIONS ON MUNICIPAL DEBTS. 


It shall be the duty of the legislature, and they are hereby empowered, to 
provide for the organization of cities and incorporated villages, and to 
restrict their powers of taxation, assessment, borrowing money, con¬ 
tracting debts, and loaning their credit, so as to prevent abuses in as¬ 
sessments and taxation, and in contracting debts by such municipal 
corporations. No county, city, town, village, school district, or other 
municipal corporation, shall be allowed to become indebted in any man¬ 
ner ; or for any purpose, to any amount, including existing indebtedV 
ness, in the aggregate exceeding five per centum on the value of the 
taxable property therein , to be ascertained by the last assessment for 
state and county taxes, previous to the incurring of such indebtedness. 
Any county, city, town, village, school district or other municipal cor¬ 
poration. incurring any indebtedness as aforesaid, shall, before or at 
the time of doing so, provide for the collection of a direct annual tax 
sufficient to pay the interest on said debt as it falls due, and, also, to 
pay and discharge the principal thereof within twenty years from the 
time of contracting the same.* 



each city by the legislature. All villages must now be 


* The words in italics were added to this article bv vote of the people at 
the general election November 8, 1874. 



XI ; 4, 5.] 


BANKS. 


147 


incorporated under a general law. (See p. 78.) Under 
the amendment to this article, municipal corporations 
of all kinds are prohibited from running into debt to 
more than five per cent, of their taxable property, and 
are required to pay all debts within twenty years. Many 
counties, cities and towns have been and still are loaded 
down with enormous debts, incurred to build railroads. 
The object of this amendment is to prevent this in 
future. 


SECTIONS IV AND V. 

BAKES. 

( 4 ) The legislature shall not have power to create, authorize or incorporate, 
by any general or special law, any bank or banking power or privilege, 
or any institution or corporation having any banking power or privilege 
whatever, except as provided in this article. 

$>) The legislature may submit to the voters, at any general election, the 
question of “ bank or no bank,” and if at any such election a number of 
votes equal to a majority of all the votes cast at such election on that 
subject shall be in favor of banks, then the legislature shall have power 
[to grant bank charters, or] to pass a general banking law, with such re¬ 
strictions and under such regulations as they may deem expedient and 
proper for the security of the bill holders; provided, that no such [grant 
or] law shall have any force or effect until the same shall have been 
submitted to a vote of the electors of the state at some general election, 
and been approved by a majority of the votes cast on the subject at 
such election.* 


The amendment which constitutes article IV, sec¬ 
tions 31 and 32, of this constitution, annuls so much 
of these two sections as allow special laws or charters 
to banks. All banking laws must be general. 

Practically, the system of state banks established 
under this section to issue bank bills, was annulled by 
the United States when congress established the system 
of national banks, in 1863. 


* The words in brackets were repealed by the amendment to article IV. 



148 


CORPORATIONS. 


[XI: 4, 5. 


The United States does not prohibit state banks, and such 
banks could lawfully be organized in this state now, under the 
general banking law; but the United States does tax the cir¬ 
culation of all state banks ten per cent., so that they are no 
longer profitable to carry on; and, therefore, there are no 
longer any banks in this state or any other state of our Union 
which issue bank bills under state laws. 

The office of bank comptroller, which was one of the ad¬ 
ministrative offices of the state, was abolished in 1869; and 
the state treasurer attends to what little business still remains 
to be done in winding up the affairs of the old state banks. 

The power to issue bills needs to be carefully guarded. 
Bank bills circulate as money, and are continually passing 
from hand to hand. Very few people can have the informa¬ 
tion by which they can tell which are good and which are bad 
among a great number of banks situated in many states of 
the Union. It was therefore right for the state to regulate 
the whole matter of banking, and throw around it such re¬ 
strictions as would make bank bills always good, and convert¬ 
ible into gold and silver. 

This was a subject on which there were so many opinions, 
and one of such importance, that the convention which framed 
the constitution did not attempt to settle it, but left it for the 
people at the general election in 1851, when it was decided in 
favor of having banks. A general banking law was passed 
by the next legislature, and submitted to the people at the gen¬ 
eral election in 1852, and approved by them. Several amend¬ 
ments have since been made, and each was voted on by the 
people. Several special charters have also been granted to> 
particular banks, which have been approved of by a vote of the 
people. 

Happily, the United States has now taken the whole matter 
of the currency into its own hands. We now have a national 
currency, composed of the United States notes, and the notes 
of the national banks chartered by congress. These are guar¬ 
antied by the United States, so that everyone who takes one 
of these bills may be sure that his money is as good as the 
United States itself. The only banks in this state which now 
issue bills are national banks. But there are many corpora¬ 
tions still in existence with banking powers in every respect^ 
except that of issuing bills. 


Xli: l.J 


AMENDMENTS, HOW MADE. 


149 


ARTICLE XII. 


AMENDMENTS. 


New occasions teach new duties. Time makes ancient good uncouth. 

They must upward still, and onward, who would keep abreast of Truth.” 

— Lownim 

This constitution is subject to the United States constitution, 
and to the laws, treaties and judicial decisions of the United 
States, so far that constitution gives the federal government 
power over a state; and, therefore, all amendments made to 
this constitution must be made subject to the same paramount 
authority of the United States. 


Amendments May 
be Made. 


1. By the legisla- 

By two successive legisla- ] 

ture. 

tures. 1 

. And a vote of the people ... J 
f Proposed by legislature_ 


Called by vote of the peo- 

2. By convention - 

pie. 

Arranged for by legislature. 
Elected by vote of the peo- 

► 

Pie .. . 


1 


a 


SECTION I. 

AMENDMENTS, HOW MADE. 

Any amendment or amendments to this constitution may be proposed In 
either house of the legislature, and if the same shall be agreed to by a 
majority of the members elected to each of the two houses, such pro¬ 
posed amendment or amendments shall be entered on their journals 
with the yeas and nays taken thereon, and referred to the legislature to 
be chosen at the next general election, and shall be published for three 
months previous to the time of holding such election. And if in the 
legislature so next chosen, such proposed amendment or amendments 
shall be agreed to by a majority of all the members elected to each 
house, then it shall be the duty of the legislature to submit such pro¬ 
posed amendment or amendments to the people, in such manner and at 
such time as the legislature shall prescribe, and if the people shall ap¬ 
prove and ratify such amendment or amendments by a majority of the 
electors voting thereon, such amendment or amendments shall become 
part of the constitution. Provided , that if more than one amendment 
be submitted, they shall be submitted in such manner that the people 
may vote for or against such amendments separately. 












150 


AMENDMENTS. 


[XII : 2. 


The process of amending the constitution by the- 
legislature is as follows: 

1. An amendment may be proposed in either house. 

2. The vote must be taken by yeas and nays. 

3. The proposed amendment must be agreed to by a 
majority of all the members elected to each house. 

4. It must be published for three months before the 
next general election. 

5. It must be agreed to by a majority of all the mem¬ 
bers of each house in the next legislature. 

6. It must be submitted to the people. 

7. It must have a majority of all votes cast on that 
subject. 

Ample opportunity is thus given for discussion, and 
it is not likely that a very unwise measure could run 
the gauntlet of all the criticism in the legislature and 
in the newspapers; and certainly no amendment can be 
passed in this way against the wishes of the people. 

It is not necessary that a proposed amendment should 
have a majority of all the votes cast at that election; 
but only that it shall have a majority of all cast on that 
subject. 

SECTION II. 

CONSTITUTIONAL CONVENTION. 

✓ 

If at any time a majority of the senate and assembly shall deem It neces¬ 
sary to call a convention to revise or change this constitution, they shall 
recommend to the electors to vote for or against a convention at the 
next election for members of the legislature; and if it shall appear that 
a majority of the electors voting thereon have voted for a convention, 
the legislature shall at its next session provide for calling such conven¬ 
tion. 

It may well happen that the people of the state shall 
become dissatisfied with the constitution, and wish to 
have it revised or changed entirely for a new one. In 


XXL: 2.] CONSTITUTIONAL CONVENTION. 


151 


this case, it is better to have a constitutional convention 
called for tliat special purpose, tban to take up the time 
of the legislature with it. The process of calling a con¬ 
vention to revise or change the constitution is as fol¬ 
lows: , 

1. The legislature may propose a convention by a 
joint resolution. 

2. The people vote on it at the next general elec¬ 
tion. 

3. If a majority of all the votes cast on that subject 
are for a convention, the next legislature provides for 
calling it. 

4. This convention will be elected by the people at 
luch time and in such a way as the legislature may 
provide. 

5. The convention need not submit its action to the 
people. A constitution made by such a convention is 
binding without a vote of the people; for the people 
have delegated their sovereign power to the members of 
the convention. But if the legislature in their call of 
the convention have prescribed that the constitution 
Bhall be submitted to a vote of the people, then the con¬ 
vention was elected with that limited power of propos¬ 
ing a new or revised constitution, but without the power 
of making it. Tn that case a vote of the people is nec¬ 
essary, or, if the convention elected with full powers 
think best, nevertheless, to submit their work to the 
people, they have a right so to do; and in that case the 
new or revised constitution is not binding until ratified 
by the people’s vote. 

No constitutional convention has yet been called 
under this section. The amendments that have been 
made thus far have all been made in the way prescribed 
m the previous section. 


152 


AMENDMENTS. 


[Xili 2. 


The following secLio.ut' have been amended or add**l 
to the constitution since its adoption: 

1. Article V, section 21, i el.vtfng to the pay of the members 
of the legislature. This was amended in 1867. 

2. Article VI, sections 5 and 9 f relating to the salaries of the 
governor and lieutenant governor. This was amended in 
1869. 

3. Article I, section 8, relating to grand juries. This was 
amended in 1870. 

4. Article IV, sections 31 and d\, relating to special legisla¬ 
tion. These sections were added in 1871. 

5. Article XI, section 3, relating to municipal taxation. 
This was amended in 1874. 

6. Article VII, section 4, relating Co the number and term 
of the judges of the supreme court. This was substituted for 
the original section in 1877. 

7. Article VIII, section 2, relating to claims against the 
state. This was amended in 1877. 

8. Article TV, sections 4, 5, 11 and 21, relating to biennial 
sessions, and a change in salaries and perquisites of members 
of the legislature. These were thus amended in 1881. 

9. Article III, section 1, relating to residence of voters in 
election districts some time before the election, and to regis¬ 
tration of voters in cities and villages. Amended to this effect 
in 1882. 

10. Article VI, section 4, article VII, set Won 12, and article 
XIII, section 1, all relating to biennial elections. Amended 
to this effect in 1882. 

Several other amendments have been p.uvfcwwd. by the 
legislature, but have been defeated by tho jiwt legisla¬ 
ture, or by vote of the people. 









XIII: 2.] DUELING. 


153 


ARTICLE XIII. 

miscellaneous provisions 

SECTION I. 

• ♦ 

GENERAL ELECTIONS. 

#<* 

The political year for the state of Wisconsin shall commence on the first 
Monday in January in each year, and the general election shall be 
holden on the Tuesday next succeeding the first Monday in November. 
The first general election for all state and county officers, except judicial 
officers , after the adoption of this amendment , shall be holden in the 
year A. D. 1884, and thereafter the general election shall be held bien¬ 
nially. All state , county or other officers, elected at the general election 
in the year 1881, and whose term of office would otherwise expire on the 
first Monday of January in the year 1884, shall hold and continue in 
such offices respectively until the first Monday in January in the year 
1885.* 

The object of this amendment is to secure biennial 
elections. Before this the state officers and some of the 
county officers were elected in the odd years, and repre¬ 
sentatives in congress and most of the county officers 
in the even years. By this amendment, all United 
States, state and county elections, except for judges, 
come in the even years. The state and county officers 
thus elected enter upon their offices the first Monday in 
January of every odd year. The state officers elected 
in 1881 had their term extended to three years by this 
amendment. 

SECTION II. 

DUELING. 

Any Inhabitant of this state, who may hereafter be engaged, either directly 
or indirectly, in a duel, either as principal or accessory, shall forever be 
disqualified as an elector, and from holding any office under the constitu¬ 
tion and laws of this state, and may be punished in such other manner 
js shall be prescribed by law. 


* The words in italics were added in 1882. 



154 


MISCELLANEOUS PROVISIONS. [XIII: 8. 


Dueling lias scarcely ever been attempted in this 
state. By this section all duelists are punished by 
being disfranchised and disqualified from holding office. 

Dueling is also punished with imprisonment in the 
state prison, and if any one is killed in a duel it is con¬ 
sidered as murder in the second degree and punished 
accordingly. 


SECTION III. 

DISQUALIFICATIONS FOR OFFICE. 

No member of congress, nor any person holding any office of profit or 
trust under the United States (postmasters excepted), or under any for¬ 
eign power; no person convicted of any infamous crime in any court 
within the United States, and no person being a defaulter to the United 
States, or to this state, or to any county or town therein, or to any state 
or territory within the United States, shall be eligible to any office of 
trust, profit or honor in this state. 

This section prohibits different classes of persons 
from holding office in the state, for very different 
reasons. 

1. Members of congress and officers of the United 
States are prohibited from holding office in this state 
while they are congressmen or federal office holders, be¬ 
cause their duty to the general government would be 
likely to interfere with their duties to the state. Mem¬ 
bers of congress are not United States officers in the 
strict legal sense of the word, and therefore they are 
named separately. 

Postmasters are excepted; they can hold office under 
the state, but they cannot be members of the legisla¬ 
ture. (IV, 13.) 

2. Persons holding office under any foreign power are 
prohibited from holding office here, because they would 
not be likely to serve two separate governments with 
loyalty; and cases might easily arise in which the in- 


XIII: 4.] 


THE GREAT SEAL. 


155 


terests of the two governments, and the duties of the 
two offices, would be opposite. 

Therefore, officers of foreign powers, even when they 
are our own citizens, as consuls frequently are, are pro¬ 
hibited from holding offices in Wisconsin. 

3. No person convicted of an infamous crime any¬ 
where in the United States can hold office in Wiscon¬ 
sin, because he has shown that he is not worthy of 
trust or honor; and the state would disgrace itself by 
putting a convicted criminal into a place of honor or 
trust. The person must have been convicted of the 
crime in some court; for the law presumes every man 
innocent till he is proved to be guilty. 

4. No defaulter to any branch of our government any¬ 
where in the United States can hold office, and for the 
same reasons. 


SECTION IV. 

THE GREAT SEAL. 

It shall be the duty of the legislature to provide a great seal for the state, 
■which shall be kept by the secretary of state: and all official acts of the 
governor, his approbation of the laws excepted, shall be thereby 
authenticated. 

All appointments to office, all patents for land, all 
pardons, etc., must have not only the signature of the 
governor, but the seal of the state, because they are 
public acts, done by the governor as the executive of 
the state. His approbation of the laws is not an execu¬ 
tive act, but a legislative one, and, therefore, does not 
need the seal of the state. 


156 


MISCELLANEOUS PROVISIONS. [XIII: 6. 


SECTION V. 

PERSONS RESIDING ON INDIAN LANDS. 

All persons residing upon Indian lands within any county of the state, and 
qualified to exercise the right of suffrage under this constitution, shall 
be entitled to vote at the polls which may be held nearest their residence, 
for state, United States or county officers. Provided , that no person 
shall vote for county officers out of the county in which he resides. 

The Indian lands are not organized into towns, and, 
therefore, persons living on them are not in any voting 
precinct. But it would not be fair to deprive them of a 
vote for other than town officers, as they would be if 
the rule had no exception, that every elector must vote 
in the town, village or ward where he resides. There¬ 
fore, such qualified electors may vote at the nearest polls 
for presidential electors, for congressmen and for state 
officers, and also for county officers, if they live in the 
county where they vote. 

SECTION VI. 

OFFICERS OF THE LEGISLATURE. 

The elective officers of the legislature, other than the presiding officers, 
shall be a chief clerk and a sergeant-at-arms, to be elected by each 
house. 

The lieutenant governor is president of the senate. 
When he does not preside, for any reason, the senate 
elects a president from its own members. The assem¬ 
bly elects a speaker from its own members. The chief 
clerk and the sergeant-at-arms of each house are elected 
by each house, but are not members and have no vote. 
The other officers and attendants are appointed. The 
chief clerk appoints his own assistants and the sergeant- 
at-arms appoints the postmaster, doorkeepers and fire- 


XIII: 7.] 


DIVISION OF COUNTIES. 


157 


men. The messengers are appointed by the speaker. 
The elections are all viva voce , and the votes of each 
member are entered on the journal. (IV, 30 ) 

SECTION VII. 

DIVISION OF COUNTIES. 

Ho county, with an area of nine hundred square miles or less, shall be di¬ 
vided or have any part stricken therefrom, without submitting the ques¬ 
tion to a vote of the people of the county, nor unless a majority of all 
the legal voters of the county voting on the question, shall vote for the 
same. 

It is supposed that the area of nine hundred square 
miles, or twenty-five congressional townships, is small 
enough, in ordinary cases, for a county. But if the 
people of the county are willing to divide the county, 
there is no good reason why they should not. 

In the case of the division of Washington county, and the 
formation of Ozaukee county, the supreme court decided that 
in computing the area of a county, bodies of water lying 
within it3 boundaries are considered parts of the count", and 
that Washington county could be divided, because it then in¬ 
cluded a part of Lake Michigan. 

The supreme court has decided that it is competent for the 
legislature to enlarge a county which contains less than nine 
hundred square miles, by adding to it part of an adjoining 
county containing a larger area, so that each of them shall be 
large enough to be divisible, without submitting the question to 
the voters; and by a subsequent act at the same session, to 
form a new county out of territory taken from such adjoining 
counties, without submitting the question of such division to 
the voters. This was in the case of the division of Chippewa 
and Buffalo counties, and the formation of Trempealeau 
county, in 1864. The legislature has since then several times 
evaded this section in the same way. The supreme court has 
also decided that the “ voters,” meant in this section and the 
next, are all the legal voters entitled to vote at any election, 
under article III. The legislature cannot extend or limit the 
suffrage for the purpose named in these sections. 


158 


MISCELLANEOUS PROVISIONS. [XIII: 9 


SECTION VIII. 

CHANGES OF COUNTY SEATS. 

No county seat shall be removed until the point to which it Is proposed to 
be removed shall be fixed by law, and a majority of the voters of the 
county voting on the question, shall have voted in favor of its removal to 
such point. 

Until the amendment constituting sections 31 and S2 
of article IV was adopted, the legislature always had 
to authorize a vote of the people of any county upon 
the question of changing the county seat. Hereafter 
under that amendment, that power is taken from the 
legislature. No special law can be passed for locating 
or changing any county seat, but a general law has 
been passed which covers this whole subject. Before a 
county seat can be changed two things must be done. 
The point to which it is to be moved must be definitely 
fixed, and a majority of all the votes cast on that ques¬ 
tion must be for changing it to said definite point. 

SECTION IS. 

OFFICERS ELECTED OR APPOINTED. 

All county officers whose election or appointment is not provided for by 
this constitution, shall be elected by the electors of the respective coun¬ 
ties, or appointed by the boards of supervisors or other county authori¬ 
ties, as the legislature shall direct. All city, town and village officers 
whose election or appointment is not provided for by this constitution, 
shall be elected by the electors of such cities, towns and villages, or of 
some division thereof, or appointed by such authorities thereof as the 
legislature shall designate for that purpose. All other officers whose 
election or appointment is not ptovided for by this constitution, and all 
officers whose offices may hereafter be created by law, shall be elected 
by the people or appointed, as the legislature may direct. 

Nearly all the officers named above are elected by the 
people. The object of this section is to forbid the prac¬ 
tice, usual in a few states, of having local officers ap¬ 
pointed by the governor of the state. 


Kill: 10.J 


VACANCIES. 




159 


SECTION X. 

VACANCIES. 

fhe legislature may declare the cases in which any office shall be deemed 
vacant, and also the manner of filling the vacancy where no provision 
is made for that purpose in this constitution. 

Any office is made vacant by the death or resignation 
of the person holding it, or 'by his removal from the 
state, or by his accepting an office from a foreign power, 
or from the United States. All civil officers can be re¬ 
moved by impeachment, and some officers can be also 
removed in a shorter way, as judges by address, and 
most county officers by the governor. When an officer 
is so removed his office is vacant. Vacancies are filled 
in various ways. A vacancy in the office of governor 
is filled by the lieutenant governor immediately, and if 
he also goes out of office, by the secretary of state. (V, 7 
and 8.) Vacancies in the judicial and administrative 
offices of the state are filled by appointment of the gov¬ 
ernor till the next election. Vacancies in the legisla^ 
ture are filled by special election, called as soon as 
possible. Vacancies in the office of superintendent of 
schools are filled by appointment of the state superin¬ 
tendent. Vacancies in town offices are filled by special 
election. Vacancies in district boards are filled by ap¬ 
pointment by the board or by the town clerk, till tb~ 
next regular school meeting. 


160 CHANGE FROM TERRITORY TO STATE. [XIV: 1 


ARTICLE XIV. 


THE CHANGE FROM TERRITORY TO STATE. 

8 

Private rights and claims... 1 

Government j Fines. 8 

claims. ’ Recognizances and bond* 6 

Governmental property. 4 


Shalt. 

fect 


Not Af- 


State 

MENT 
IZKD . 


Adoption of Con¬ 
stitution . 


Govern- 
O EOAN- 


Governm ental 
jurisdiction ... 


Laws 




Criminal prosecutions.... 4 

Civil suits. 4 

Statutes not conflict!) 

with this constitution.. 2 
Common law.id 


Officers. \ Territorial... 5 

< County and town .... 7 


County 

Laid before congress... . . ... 8 

Voted on by the people. 9 

First election under it. . 9 

Congressional... 10 

Legislative. . .12 

Returns of election. 11 

Meeting of legislature. 6 

Term of office of new officers. 14 

Oath of office. ,.. 15 


Apportionment., j 


SECTION I. 


LEGAL PROCESS NOT AFFECTED. 


That no Inconvenience may arise by reason of a change from & territorial 
to a permanent state government, it is declared that all rights, actions, 
prosecutions, judgments, claims and contracts, as well of individuals as 
of bodies corporate, shall continue as if no such change had taken 
place, and all process which may be issued under the authority of the 
territory of Wisconsin, previous to its admission into the Union of the 
United States, shall be as valid as if issued in the name of the state. 

All private rights and claims are thus secured against any 
question that might be raised upon the technical point that the 
state of Wisconsin is a different political body from the terri¬ 
tory of Wisconsin, and that what had been done in the courts 
of the territory could not be recognized by the courts of the 
state. Such a plea would not have been sustained in the higher 






























XIV: 3.] 


FINES GO TO STATE. 


161 


courts of the state, but if raised in the lower courts it might 
have caused some unjust decisions and much inconvenience; 
consequently, it is said in plain terms in the constitution itself, 
so that no one can mistake it. 

The supreme court has decided that a change in the form of 
a government does not-extinguish its obligations or destroy 
private rights of property existing at the time of such change. 
But when a change of 'government occurs, either in its form 
or in the person of its ruler, the new government succeeds to 
the fiscal rights and is bound to fulfill the fiscal obligations of 
the former government. This is the universal decision of the 
courts of all civilized countries. 


SECTION II. 

LAWS NOT REPEALED. 

411 laws now in force in the territory of Wisconsin, which are not repug¬ 
nant to this constitution, shall remain in force until they expire by their 
own limitation, or be altered or repealed by the legislature. 

It would not do to leave the state without a code of laws 
until the legislature had adopted one. So the laws of the ter¬ 
ritory with which the people were already provided, were by 
this section adopted as the laws of the state, subject to repeal 
or amendment, or expiry by their own limitation, like any 
other laws, except that now this constitution became the su¬ 
preme law of the state and all statutes had to give way to it* 
whether they were made before or after its adoption. 


SECTION IIL 

FINES GO TO STATE. 

All penalties, or forfeitures accruing to the territory of Wisconsin, 

shall inure to the use of the state. 

The state succeeds to the territory as its political heir, and 
therefore receives all fines and forfeitures that are due the ter¬ 
ritory. It would not be just that these fines should be re¬ 
mitted to the persons from whom they were due, merely 
because the government was changed in its form. 

11 


162 


CHANGE FROM TERRITORY TO STATE. [XIV: 4. 


SECTION IV. 

OTHER THINGS NOT AFFECTED. 

411 recognizances heretofore taken, or which may be taken before the change 
from a territorial to a permanent state government, shall remain valid, 
and shall pass to, and may be prosecuted in the name of the state, and 
all bonds executed to the governor of the territory, or to any other offi¬ 
cer or court in his or their official capacity, shall pass to the governor or 
state authority, and their successors in office, for the uses therein re¬ 
spectively expressed, and may be sued for and recovered accordingly; 
and all the estate or property, real, personal or mixed, and all judg* 
ments, bonds, specialties, choses in action, and claims or debts of what¬ 
soever description, of the territory of Wisconsin, shall inure to and vest 
in the state of Wisconsin, and may be sued for and recovered in the same 
manner and to the same extent, by the state of Wisconsin, as the same 
could have been by the territory of Wisconsin. All criminal prosecu¬ 
tions and penal actions which may have arisen, or which may arise 
before the change from a territorial to a state government, and which 
shall then be pending, shall be prosecuted to judgment and execution in 
the name of the state. All offenses committed against the laws of the 
territory of Wisconsin, before the change from a territorial to a state 
government, and which shall not be prosecuted before such change, may 
be prosecuted in the name and by the authority of the state of Wiscon¬ 
sin, with like effect as though such change had not taken place; and all 
penalties incurred shall remain the same as if this constitution had not 
been adopted. All actions at law, and suits in equity, which may be 
pending in any of the courts of the territory of Wisconsin, at the time 
of the change from a territorial to a state government, may be con¬ 
tinued and transferred to any court of the state which shall have juris¬ 
diction of the subject matter thereof. 

I. Recognizances and bonds. 

Recognizances and bonds are written pledges given to the 
state through some officer legally authorized, that some par¬ 
ticular thing shall be done, or else the person who gives the 
recognizance or bond will forfeit a certain sum of money 
named in the bond. A recognizance is given by a person 
charged with some offense, when he either pledges himself to 
appear at such a time and stand trial, or pledges himself to 
keep the peace. Bonds are given by all public officers who 
handle public money, as pledges of their honesty. Bonds are 
also given by friends of such public officers for their honesty. 
Bail bonds are given by friends of prisoners pledging them¬ 
selves that they will appear and stand their trial. 


XIV: 4.J OTHER THINGS NOT AFFECTED. 


163 


It would not be right that any one should escape the obliga¬ 
tion of his bond merely because the form of government waa 
changed. So this section provides that all bonds and recogni¬ 
zances shall remain valid, and if any are forfeited they may 
be collected just as they would have been before the state gov¬ 
ernment was organized. 

II. Property of the state. 

The state of Wisconsin is really the same political body, 
with another name and another form of government, as the 
territory of Wisconsin. Ail property that belonged to the ter¬ 
ritory therefore still continued to belong to the state. The 
things enumerated above are all the different sorts of prop¬ 
erty which the law recognizes. Real estate is land with all the 
buildings and improvements attached to it. Personal prop¬ 
erty is all movable property of any sort. Mixed property 
is that which is partly real and partly personal. Judg¬ 
ments are claims against anyone which have been sued out 
before a court, and which the court has ordered to be collected. 
Bonds are pledges to pay a certain sum of money unless some¬ 
thing else is done. Specialties are securities for debt, like 
mortgages. Choses in action are ri ghts to something not pos¬ 
sessed, but which can be recovered by law. In brief, every¬ 
thing that the territory owned or claimed is owned or claimed 
by the state. 

III. Prosecutions begun. 

Offenders who were being prosecuted when the change of 
government took place could not plead that the prosecutions 
begun by the territory could not be carried on by the state, 
and so go clear of punishment on a technicality. That plea is 
barred by this section. 

IV. Prosecutions for offenses committed. 

Nor could offenders who had not yet been prosecuted escape 
on a like plea. But ex post facto laws are unlawful under 
the United States constitution, as well as under this constitu¬ 
tion; and therefore the penalties for crimes and misdemeanors 
committed under the territorial government were to be such 
as the territorial law prescribed, although prosecuted by th« 
state. 


164 CHANGE FROM TERRITORY TO STATE. [XIV: 7. 
V. Lawsuits begun. 

Lawyers distinguish between actions at law and suits in¬ 
equity. The distinction is practically abolished in this state. 
In common language both are called lawsuits. To save all 
trouble, the constitution provides that all lawsuits going on at 
the time of the change in the form of government shall pro¬ 
ceed exactly as if the change had not been made. 


SECTION Y. 

TERRITORIAL OFFICERS CONTINUE. 

All officers, civil and military, now holding their offices under the authority 
of the United States, or of the territory of Wisconsin, shall continue 
to hold and exercise their respective offices until they shall be super 
seded by the authority of the state. 

It is a general principle of law that all officers shall hold 
office until their successors are elected and qualified. There 
must be somebody in the offices or all the machinery of gov¬ 
ernment will be stopped. On the same principle, this sec¬ 
tion provided that all the territorial officers should hold over 
until their successors were elected and qualified. 

SECTION VI. 

FIRST SESSION OF THE LEGISLATURE. 

The first session of the legislature of the state of Wisconsin shall commence 
on the first Monday in June next, and shall be held at the village of 
Madison, which shall be and remain the seat of government until other¬ 
wise provided by law. 

At the same time the state officers were inaugurated and 
the state government was thus organized. The village of 
Madison, now a city, is still the capital of Wisconsin. 

SECTION VII. v 

LOCAL OFFICERS CONTINUED. 

All county, precinct and township officers shall continue to hold their re¬ 
spective offices, unless removed by competent authority, until the legis¬ 
lature shall, in conformity with the provisions of this couitfitution, 
provide for the holding of elections to fill such offices respectively 


165 


XIV: 9.] SUBMITTED TO THE PEOPLE. 

w v 

In some of the southern counties of the state the towns were 
then called precincts. No change was to be made in county 
or town officers by the transition from territory to state, until 
the legislature passed laws to carry into effect the provisions 
of the constitution. 


SECTION VIII. 

CONSTITUTION SUBMITTED TO CONGRESS. 

0 * 

'The president of this convention shall, immediately after its adjournment, 
cause a fair copy of this constitution, together with a copy of the act of 
the legislature of this territory, entitled “ An act in relation to the for- 
mation of a state government in Wisconsin, and to change the time of 
holding the annual session of the legislature,” approved October 27, 
1847, providing for the calling of this convention, and also a copy of so 
much of the last census of this territory as exhibits the number of its 
inhabitants, to bo forwarded to the president of the United States, to 
be laid before the congress of the United States at its present session. 

This was done, and congress approved of this constitution, 
and admitted the state to the Union, May 29, 1848. The mem¬ 
bers of congress immediately took their seats in the house of 
representatives, and when the legislature met it elected two 
■senators who took their seats at the next session. The copy 
.of the census was to assure congress that the new state had a 
large enough population to entitle it to two representatives in 
■congress and four presidential electors that fall. 

SECTION IX. 

SUBMITTED TO THE PEOPLE. 

This constitution shall be submitted at an election to be held on the second 
Monday in March next, for ratification or rejection,'to all white male 
persons of the age of twenty-one years or upwards, who shall then be 
residents of this territory and citizens of the United States, or shall have 
declared their intention to become such in conformity with the laws of 
congress on the subject of naturalization; and all personshaving such 
qualifications shall be entitled to vote for or against the adoption of this 
constitution, and for all officers first elected under it. And if the con¬ 
stitution be ratified by said electors, it shall become the constitution of 
the state of Wisconsin. On such of the ballots as are -for the constitu¬ 
tion, shall be written or printed the word “ yes; ” and on such as are 
against the constitution, the word “no.” The election shall be con¬ 
ducted in the manner now prescribed by law, and the returns made hy 
the clerks of the boards of supervisors or county commissioners (as th« 


166 CHANGE FROM TERRITORY TO STATE. [XIV: 10. 


case may be) to the governor of the territory, at any time before the- 
tenth of April next. And in the event of the ratifleation-of this con¬ 
stitution, by a majority of all the votes given, it shall be the duty of th» 
governor of this territory to make proclamation of the same, and to 
transmit a digest of the returns to the senate and assembly of the state 
on the first day of their session. An election shall be held for governa 
and lieutenant governor, treasurer, attorney general, members of th« 
state legislature, and members of congress, on the second Monday ol 
May next, and no other or further notice of such election shall 'be 
required. 

A constitution framed by a convention which met the year 
before, had been rejected by a vote of the people, but this was 
accepted. 

Notice that the qualifications for voters at this election aro 
not the same as those given in article III of the constitution. 
Voters were not required to have lived a year in the territory. 
Only whites were allowed to vote. There was no disqualifica¬ 
tion because of felony or other crimes named in article II of 
this constitution. So it came about that some persons were 
entitled to vote at this election who were not entitled to vote 
at the next, and some persons were not entitled to vote at this 
election who were entitled to vote at the next. For instance, 
civilized Indians could not vote at this election, but did vote at 
the next, while white men who had just come to the teriitory 
did vote at this election, but could not vote at the presidential 
election held the next fall. But the most of the voters re¬ 
mained the same. 

Provision is made for conducting the election, canvassing 
the elections and making known the result. 

SECTION X. 

MEMBERS OF CONGRESS. 

Two members of congress shall also be elected on the second Monday of May 
next; and [until otherwise provided by law, the counties of Milwaukee, 
Waukesha, Jefferson, Racine, Walworth, Rock, and Green Blmll consti¬ 
tute the first congressional district, and elect one member; and the 
counties of Washington, Sheboygan, Manitowoc, Calumet, Brown, Win¬ 
nebago, Fond du Lac, Marquette, Sauk, Portage, Columbia, Dodge, Dane, 
Iowa, La Fayette, Grant, Richland, Crawford, Chippewa, St. Croix, and 
La Pointe, shall constitute the second congressional district, and shak 
elect one member.] * 


•The words inclosed in brackets are obsolete by their own limitr 'don. 




XIV: 11.] 


RETURNS OF ELECTIONS. 


1GT 


This state has now nine members of congress. The districts 
have been changed four times since this constitution was 
adopted, and are now nine in number, to correspond with the 
number of members. 


SECTION XL 

RETURNS OF ELECTIONS. 

The several elections provided for in this article shall be conducted accord¬ 
ing to the existing laws of the territory. Provided , that no elector shall 
be entitled to vote, except in the town, ward, or precinct where he re¬ 
sides. The returns of election, for senators and members of assembly, 
shall be transmitted to the clerk of the board of supervisors, or county 
commissioners, as the case may be, and the votes shall be canvassed, 
and certificates of election issued, as now provided by law. [In the first 
senatorial district, the returns of election for senator shall be made to 
the proper officer in the county of Brown; in the second senatorial dis¬ 
trict, to the proper officer in the county of Columbia; in the third sena¬ 
torial district, to the proper officer in the county of Crawford; in the 
fourth senatorial district, to the proper officer in the county of Fond du 
Lac; and in the fifth senatorial district, to the proper officer in the county 
of Iowa.] The returns of election for state officers and members of con¬ 
gress shall be certified and transmitted to the speaker of the assembly 
at the seat of government, in the same manner as the votes for dele¬ 
gates to congress are required to be certified and returned, by the laws 
of the territory of Wisconsin, to the secretary of said territory, and in 
such time that they may be received on the first Monday in June next; 
and as soon as the legislature shall be organized, the speaker of the as¬ 
sembly and the president of the senate shall, in the presence of both 
houses, examine the returns, and declare who are duly elected to fill the 
several offices hereinbefore mentioned, and give to each of the persons 
elected, a certificate of his election. 

The manner of election was to be in the usual and familiar 
way, except that no elector could vote out of the election 
precinct in which he resided. So that persons living on In¬ 
dian lands could not vote at this election, although under the 
constitution (XIII, 5) they are now entitled to vote at the near¬ 
est polls. 

The returns of the election are specially provided for, as this 
election is a state election before the state is organized. The 
returns are not now made and canvassed in that way. (See 
notes on article V, section 3.) 


168 CHANGE FROM TERRITORY TO STATE. [XIV: 13. 


SECTION XII. 

LEGISLATIVE APPORTIONMENT. 

Until there shall be a new apportionment, the senators and members of the 
assembly shall be apportioned among the several districts as herein¬ 
after mentioned, and each district shall be entitled to elect one senator 
or member of the assembly, as the case may be.* 

This apportionment has been altered every five years since 
the constitution was adopted. (IV, 3.) So that the apportion¬ 
ment given in this section has been long since abolished. Any 
legislative manual for the current year will give the present 
senatorial and assembly districts. 

This section established nineteen senate districts and sixty-six 
assembly districts, while the constitution allows as many as 
thirty-three of the one, and one hundred of the other. The 
number of senators and assemblymen was increased at each 
apportionment as the state grew in population, till in 1862 the 
state legislature had the highest number of members possible, 
as the constitution now stands. This number is still kept up, 
and probably will be for many years to come. 


SECTION XIII. 

COMMON LAW CONTINUES IN FORCE. 

Such parts of the common law as are now in force in the territory of Wis¬ 
consin, not inconsistent with this constitution, shall be and continue part 
of the law of this state until altered or suspended by the legislature. 

The common law is all that body of customs, precedents 
and forms which have grown up in England, but which are 
not expressed in the statutes. It is the unwritten law, as the 
statutes are the written law. The United States having been 
colonies of Great Britain, adopted as colonies, and afterwards 
as states, the common law of England, as the basis of their 
system of law. Of course unwritten law can never have the 
force of written law; and if the two conflict, the written law — 

• A- this apportionment is no longer in force, and would take up too muck 
room, it is omitted. 




XIV: 15.] 


OATH OF OFFICE. 


169 


the constitution and the statutes of the state — will stand, and 
the unwritten law — the common law — must give way. 

Even if this section had not been in the constitution, the 
courts would undoubtedly have decided that the common law 
is in force in this state, so far as it is not suspended by the 
constitution and statutes of the state. 

For the common law has been accepted by the United States 
courts, and was, therefore, a part of the law governing the 
territory of Wisconsin, and it would remain apart of the law 
of the state, except so far as it was expressly abrogated. But, 
to avoid all controversy, this is stated in the constitution, bo 
that no one can mistake it. 

SECTION XIV. 

TERMS OF OFFICE. 

3ie senators first elected In the even numbered senate districts, the gov¬ 
ernor, lieutenant governor, and otfier state officers first elected under 
* this constitution, shall enter upon the duties of their respective offices on 
the first Monday of June next, and shall continue in office for one year 
from the first Monday of January next. The senators first elected In 
the odd numbered senate districts, and the members of the assembly 
first elected, shall enter upon their duties respectively on the first Mon¬ 
day of June next, and shall continue in office until the first Monday in 
January next- 

The members of assembly and the senators in the odd dis¬ 
tricts were to hold office for seven months, the rest of the 
year. The senators m the even districts and the state officers 
were to hold office for the rest of the year and one year more. 
After the first election, assemblymen were to be chosen every 
year; the state officers and the senators in the even districts 
in the odd years; and the senators' in the odd districts in the 
even years. 

SECTION XV. 

OATH OF OFFICE. 

The oath of office may be administered by any judge or justice of the 
peace, until the legislature shall otherwise direct. 

The constitution directs that members of the legislature and 
most officers shall tak» an oath of office, swearing that they 


1 70 CHANGE FROM TERRITORY TO STATE. [XIV: 15. 


will support the constitution of the United States and of the 
state of Wisconsin, and faithfully discharge the duties of the 
offices to the best of their ability. (IV, 28.) This section pro¬ 
vides that the oath may be administered by any judge or jus¬ 
tice of the peace, until the legislature otherwise directs. 
Various other officers are now allowed to administer the oath 
of office. 





INDEX, 


figures refer to pages.] 


ANALY^KS. 


General analysis of the state consti¬ 
tution, 7. 

Article I.— Declaration of riguts, 14. 
Rights of accused persons, 25. 
Articles II and IX.— Boundaries and 
jurisdiction, 40. 

Article 111.— suffrage, 47. 

IV.— Legislative, 59. 

V.— Executive, 86. 

VI. —Administrative, 99. 

VII.— Judiciary, J05. 

VUI.—Finance, 126. 

X.— Education, 136. 

XI.— Corporations, 144. 

XII.— Amendments, 149. 

XIII. — Miscellaneous, 153. 

XIV. — The change from terri¬ 

tory to state, 160. 


A. 


Accused persons, rights of, 24. 
Accusation, the right of accused to 
know, 25. 

Acting governor, 95. 

Address, removal of judge by, 120. 
Adjournment of legislature, 69. 
Administrative Department, 99-104. 
Aliens, resident, 35. 

Allodial, all land declared to be, 83. 
Almighty God, thanks to, 10. 
Amendments, 149-152. 

Amendments, list of, 152. 
Apportionment, of legislature, 62. 
Appropriations, 127, 130. 

Arrest, privilege from, of legislators, 
72. 

Assembly, legislative powers of, 61. 
number of members, 61. 
elections biennial, 63. 

(See also Legislature.) 
Assembly, freedom of, 21 
Attainder, bills of, 31. 

Attorney general, 103. 


a 

Bail, excessive, forbidden, 28. 

accused admitted to, 28. 

Banks, 147. 

Biennial sessions, 70. 

Biennial elections, 63, 64, 103, 153. 

Bill, all laws by, 73. 

Bills, private and local, 74. 

may originate in either house, 7h. 
how become laws, 96. 

Boards, administrative. 100. 
Boundaries and Jurisdiction, 4(M6. 
Boundaries, how they can be 
changed, 42. 
not water, 42. 

narrower than originally In¬ 
tended, 43. 


c. 


Certiorari, writ of, 113, 

Circuit judges. (See Judges.) 

Circuit courts, 116. 

Citizenship, United States, 52. 
state, 53. 

Clerk of court, 119. 

Code, 125. 

Commander-in chief, 90. 
Commissioners, court, 125. 

Common law, 168. 

Compensation of members, 77. 
Conciliation, tribunals of, 122. 
Constitutional convention, 150. 
Contracts, the obligation of, not to be 
impaired, 31. 

Contractors with state, compensation 
not increased, 81. 

Convocation of legislature by gov 
ernor, 91. 

Corruption of blood, 32. 
Corporations, 144-148. 

Counsel, the right to have, 25. 
Counties, division of, 157. 

County seat, change of, 158. 

County boards, powers of, 77. 




172 


INDEX. 


County government, 78. 

County officers, 102. 

County judges, 110. 

Court, term of, 119. 
clerk of, 139. 
commissioner, 125. 

Courts of the state, 110. 

Court, supreme. (See Supreme 
Court.) 

Credit of the state, 127. 
Cross-examine witnesses, the right 
to, 25. 

D. 

Debt, imprisonment for, 85. 

Debt, state, 128, 129, 131. 

Debts, municipal, restrictions on, 146. 
Declaration oe Knurrs, 14-219. 
Departments of government, 58. 
Disqualifications for office, 154. 
Divorces by legislature forbidden, 80. 
Dueling, 153. 

E. 

Education, 136-143. 

Elections for legislature, 63, 64. 
Elections by legislature, 83. 

Elections, each house judge of, 65. 
Election, the general, 153. 

Eligibility to legislature, 64, 71. 
Eminent Domain, 132-135. 

Enacting Clause, 9-13. 

Entails forbidden, 34. 

Equity and law, 123. 

Error, writs of, 38. 

Escheats, 135. 

Executive Department, 86-98. 
Executive power vested in governor, 

8i. 

Exemption laws, 36. 

Ex post facto laws, 31. 

Expulsion of members of legisla¬ 
ture, 66. 

F. 

Feudal tenures forbidden, 83. 
Finance, 126-131. 

Fines, excessive, forbidden, 24. 
Freedom, to secure the blessings of, 
10 . 

definition of, 15. 
of speech, 19. 

of speech in legislature, 73. 

religious, 36. 

its blessings can only be main¬ 
tained, how, 38. 


G. 

God, thanks to, 10. 

Government, to form a more perfect, 

10 . 


Government, established to secure 
personal freedom, 15. 
the end of, is to secure Inherent 
rights, 17. 

Governor, executive power vested in, 

87. 

eligibility, 87. 
election of, 88. 
powers and duties, 89. 
salary, 92. 

power to pardon, 92. 
vacancies, 93. 
veto power, 96. 


H. 

Habeas corpus, 28, 112. 


I. 

Impeachment, 107. 

Imprisonment for crime, allowed, 18. 

for debt, forbidden, 35. 

Indian lands, persons residing on, 156. 
Inherent rights, 10. 

to secure them is the end of all 
government, 17. 

Injunction, writ of, 113. 

Internal improvements. 131. 


J. 

Journal of each house, 69. 

Judges, of supreme court, 113. 
circuit courts, 115. 
vacancies and elections, 116. 
salaries and qualifications, 117. 
removal by address, 120. 
probate, 121. 

county and municipal, 110 
Judicial circuits, 114. 

Judiciary Department, 105-125. 
Jurisdiction and Boundaries, 40-46. 
Jurisdiction, restrictions on state, 43. 
original and appellate, 111. 
concurrent, 132. 

Jury, trial by, 22. 

the right to an impartial, 28. 
Justice, should be free and certain. 
29. 

Justices of the peace, 121. 


L. 

Land, the title to, 44. 

of United States not taxed, 46. 
school, 46. 

Law and equity, 123. 

Law, due process of, 27. 

Laws, style of, 73. 
how passed, 96. 
publication of, 124. 




INDEX. 


173 


Lawyer, the right to have, 124. 
Legislative Department, 58-85. 
Legislative power, vested in whom, 
61. 

Legislature, number of members, 61. 
apportionment, 62. 
elections, 63, 64. 
eligibility, 64, 67. 
judge of elections, 65. 
quorum, 65. 

power to enforce order, 66. 
oncers, 68, 156. 
publicity of proceedings, 69. 
sessions, 70. 

restrictions on members, 70. 
vacancies, 72. 
privileges of members, 72. 
freedom of speech, 73. 
style of the laws, 73. 
rivate and local bills, 74. 
ills originate in either house, 75. 
yeas and nays, 75. 
compensation of members, 77. 
oath of office, 82. 
elections by legislature, 83. 
special legislation forbidden, 84. 
Libel, restrictions upon suits, 20. 
Lieutenant-governor, eligibility, 88. 
election, 88. 
powers, 95. 
salary, 96. 

Lotteries forbidden, 80. 


M. 

Mandamus, writ of, 112. 

Message, governor's, 91. 

Military subordinate, 38. 

Militia, 83. 

Miscellaneous Provisions, 153-159. 
Municipal judges, 110. 

N. 

Nation and state, 11. 

Navigation free, 132. 

Nays and yeas, 75. 

Non-residents taxed no higher, 46. 

o. 

Oath of office, 82. 

Objects of the constitution, 10. 

Office, no religious tests for, 37. 

no member of legislature elected 
to one created during his term, 
70. 

disqualifications for, 154. 
oath of, 82. 

Officers of legislature, 68,156. 
Officers, compensation not increased, 
81. 

state, 101. 

elected or appointed, 158. 


P. 

Pardoning power, 92. 

People, the authors of this constitu¬ 
tion, 9. 

Petition, right of, 21. 

Power of legislature to enforce order, 
66 . 

President of senate, 68, 95. 

Privileges of members of legislature, 
72. 

Printing of the state, 81. 

Probate judges, 121. 

Property not taken without compen¬ 
sation, 33. 

Property not taken without jury, 146. 

Publicity of legislative proceedings, 
69. 

Punishments, cruel and unusual, for¬ 
bidden, 24. 


Q. 

Qualifications, each house judge of 

65. 

Quorum, 65. 

Quo warranto, writ of, 113. 


R. 

Railroads, 134. 

Religious freedom, 36. 

Religious tests for office, 37. 
Representation, the two processes 
of, 48. 

Reputation, rights of, 20. 

Residence, questions of, 56. 

Returns, each house judge of, 65. 
Rights, inherent and conventional, 16. 
Rules of each house, 66. 


s. 

Salary of members of legislature, 77, 
or governor, 92. 
of lieutenant-governor, 96. 
of judges, 117. 

Schedule, 160-170. 

School fund, 138, 142. 

Schools, common, 140. 

Schools, normal, 139. 

School tax, 141. 

School land commission, 143. 

Seal, the great, 155. 

Searches and seizures, 30. 

Secretary of state, 102. 

Sectarian instruction, 141, 143. 

Senate, legislative power of, 61, 
number of members, 61. 
elections, 64. 

(See also Legislature.) 

Sessions of legislature, 70. 

Sheriffs, 103. 




174 


INDEX. 


Slavery prohibited, 18. 

Special legislation forbidden, 84. 
Speech, freedom of, 19. 

State officers, 101. 

State and nation, 11. 

Stationery and other perquisites for¬ 
bidden members, 77. 

Subordination of state to nation, 12. 
Suits, tax on, 123. 

Suits against the state, 82. 

Suffrage, 47. 

Superintendent of public Instruction, 

137. 

Supreme court, powers, 111. 
organization, 113. 


T. 

Tax, annual, 128. 

Tax on suits, 123. 

Taxation, no higher for non-residents, 
46. 

Taxation, uniform, 126. 

Territory, Change of to State, 160- 
170. 

Territory, property of, 133. 

Terms of court, 119. 

Testify, not compelled to, against 
himself, 28. 

Tests for office, religious, 87. 

Town government, 78. 

Tranquillity, to insure domestic, 11. 
Treason, 30. 

Treasurer, state, 102. 


Trial, the right to a speedy public, 88. 
Tried, not twice for tne same offense*, 
28. 

U. 

University, state, 142. 

y. 

Vacancies, In legislature, 78. 

in governor, 93. 
hi lieutenant governor, 95. 
in office, 159. 

Veto power. 96. 

Voters, qualifications of, 60. 
registration of, 52. 
disqualifications, 54 
Voting by ballot, 55. 

w. 

War debts, 129. 

Welfare, to promote the general, 11 . 
Witnesses, the right to meet face fefi 
face, 25. 

the right to subpoena, 28. 

Writs of error, 38. 
power to issue, 112. 
form of, 122. 

Y. 

Teas and nays, 75. 




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